Anderson v. B & G Backhoe, Inc. et al

Filing 15

ORDER sua sponte addressing subject matter jurisdiction Signed by Honorable David C. Bramlette, III on 5/31/2018 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ELLIS ANDERSON

PLAINTIFF

VS.

CIVIL ACTION NO. 5:18-cv-7(DCB)(MTP)

B & G BACKHOE, INC.,
and OTIS PARNELL

DEFENDANTS
ORDER

This cause is before the Court sua sponte to address the issue
of subject matter jurisdiction.
Order

(docket

entry

13)

The Court previously entered an

finding

that

the

total

amount

of

compensatory damages claimed by the plaintiff is $12,740.00, and
that the defendants have not presented any summary judgment type
evidence in support of this Court’s exercise of federal diversity
jurisdiction.

The Court further found that it is not facially

apparent

the

from

plaintiff’s

Complaint

that

the

amount

in

controversy exceeds $75,000, exclusive of interest and costs.
The court allowed the plaintiff to file an affidavit limiting
his recovery in this action to $75,000, exclusive of interest and
costs.

Instead, the plaintiff’s attorney filed an affidavit on

behalf of his client, stating “I agree to limiting the recovery of
[Ellis Anderson’s] case to $75,000, exclusive of interest and
costs.”

(Docket entry 14).

The plaintiff did not file an affidavit as directed by the
Court. “[S]tatements of counsel do not constitute competent summary
judgment evidence.”

See Roberts v. Walthall County General Hosp.,

96 F.Supp.2d 559, 561 (S.D. Miss. 2000).
the

plaintiff,

and

not

his

counsel,

A stipulation signed by
regarding

the

amount

in

controversy, would constitute competent evidence and should resolve
any question that might arise as to the binding effect of the
stipulation in subsequent proceedings.

Cf. Boyd v. Dolgencorp,

Inc., No. 5:12-cv-48, 2012 WL 3779952, at *3 (S.D. Miss. Aug. 31,
2012)(finding that an affidavit executed by the plaintiff’s counsel
could not bind the plaintiff, “who can circumvent the affidavit’s
intended

effect

by

finding

another

attorney

to

amend

the

complaint”).
The Court therefore finds that it will allow the plaintiff
fourteen (14) days to file an affidavit with this Court establishing
that the amount in controversy does not exceed $75,000.
plaintiff’s

affidavit,

to

be

effective,

must

state

The

without

qualifiers or equivocation that he is not seeking an amount greater
than $75,000, exclusive of interest and costs; and that he will not
amend his complaint to seek damages in excess of $75,000, exclusive
of interest and costs, for damages of any kind as a result of the
circumstances alleged in the Complaint.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff has fourteen (14) days
from the date of entry of this Order to file an affidavit with the
Court limiting his recovery in this action to $75,000, exclusive of
interest and costs.

The Court will remand this action to the

2

Circuit Court of Pike County, Mississippi, if the plaintiff files
such an affidavit.
SO ORDERED, this the 31st day of May, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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