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

Filing 16

ORDER The plaintiff has 14 days from entry of this Order to file an affidavit limiting his recovery in this action to $75,000, exclusive of interest and costs. The Court will remand this action to the Circuit Court of Pike County, Mississippi , if the plaintiff files such an affidavit. If the plaintiff fails to file such an affidavit within the time allowed, the Court will order the parties to conduct remand-related discovery in this case. Signed by Honorable David C. Bramlette, III on 8/1/2018 (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

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”).
Therefore, the Court, in an Order of May 5, 2018 (docket entry
15), allowed the plaintiff fourteen (14) days to file an affidavit
with this Court establishing that the amount in controversy does not
exceed $75,000. Such affidavit, to be effective, must state without
qualifiers or equivocation that the plaintiff 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.
As of the date of the present Order, the plaintiff has not
complied with the previous Order of the Court, and has not filed any
affidavit or proof establishing whether or not the amount in
controversy exceeds $75,000.00.
In order for the defendants to keep this case in federal court,

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they must prove by a preponderance of the evidence that the amount
in controversy is met.
58 (5th Cir. 1993).
ways.

See De Aguilar v. Boeing Co., 11 F.3d 55,

The defendants may carry this burden in two

See Scarlott v. Nissan North Am., Inc., 771 F.3d 883, 888

(5th Cir. 2014).

The defendants may point to the plaintiff’s state

court complaint and contend that the amount in controversy is
“facially

apparent”

from

its

four

corners.

See

Manguno

v.

Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002).

Or the defendants may offer summary-judgment-type evidence

showing that the amount in controversy exceeds the jurisdictional
minimum.

Id. at 723.

The defendants, in their Notice of Removal, point to the
plaintiff’s demand for judgment in which he contends that he
a. suffered serious, painful and permanent bodily
injuries, great physical pain and mental anguish, severe
and substantial emotional distress, loss of the capacity
for the enjoyment of life;
b. was, is and will be required to undergo medical
treatment and to incur medical costs and expenses in
order to alleviate injuries, pain and suffering;
c. was, is and will be precluded from engaging in normal
activities and pursuits, including a loss of ability to
earn money and of action [sic] earnings;
All of the Plaintiff’s losses were, are and will be due
solely to and by reason of the carelessness and
negligence of the Defendants, without any negligence or
want of due care on the Plaintiff’s part contributing
thereto. The Plaintiff sustained damage to his vehicle,
received serious, painful, disabling and permanent bodily
injuries which required him to incur or become liable for
certain medical and other expenses, and he sustained an
impairment in his earning capacity.
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State Court Complaint (docket entry 1-1, pp.3-4). Nevertheless, the
only evidence of damages in this case reveals a total of $12,740.00.
Therefore, the Court will allow the plaintiff (not his counsel)
fourteen (14) days to file an affidavit limiting his recovery in
this action to $75,000, exclusive of interest and costs.

The Court

will remand this action to the Circuit Court of Pike County,
Mississippi, if the plaintiff files such an affidavit.
If the plaintiff fails to file such an affidavit within the
time allowed, the Court will order the parties to conduct remandrelated discovery in this case.
Accordingly,
IT IS HEREBY ORDERED tha 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

Circuit Court of Pike County, Mississippi, if the plaintiff files
such an affidavit. If the plaintiff fails to file such an affidavit
within the time allowed, the Court will order the parties to conduct
remand-related discovery in this case.
SO ORDERED, this the 1st day of August, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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