Toberman v. BPV Market Place Investors, LLC

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to remand [Doc. # 16 ] is denied. Signed by District Judge Carol E. Jackson on 6/1/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CRAIG TOBERMAN,
Plaintiff,
vs.
BPV MARKET PLACE INVESTORS, LLC,
Defendant.

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No. 4:16-CV-519 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to remand the action to
state court.

Defendant has responded in opposition.

Plaintiff has not filed a reply

memorandum, and the time to do so has expired.
Removal in this case was premised on diversity jurisdiction, which requires an
amount in controversy greater than $75,000, exclusive of interest and costs, and
complete diversity of citizenship among the litigants.

28 U.S.C. § 1332(a).

In the

instant motion and in an affidavit, plaintiff states that he is not seeking more than
$75,000 in the lawsuit; as such, he argues that the amount-in-controversy
requirement is not satisfied and the Court lacks subject matter jurisdiction.

The

parties’ diverse citizenship is not disputed.
In the complaint, plaintiff seeks damages resulting from an injury he sustained
when a pint glass fell onto his hand from the second floor of a building defendant
owns.

The plaintiff alleges that he sustained “severe, permanent, painful and

disabling personal injuries to his left hand, wrist, thumb and fingers and the bones,
joints, muscles, tendons, tissues, nerves, membranes, ligaments and parts thereof.”
Complaint at ¶ 8 [Doc. #3].

Because of these injuries, plaintiff alleges that he has

incurred and likely will continue to incur “substantial medical bills and an impaired
ability to work and enjoy hobbies,” in addition to “severe physical and emotional pain

and suffering.”

Compl. at ¶ 10.

In accordance with Missouri law, plaintiff did not

plead a specific amount of damages in the complaint, but has requested a judgment in
excess of $25,000.

See Mo. Rev. Stat. §§ 55.05, 55.19.

Where, as here, the complaint fails to allege a specific amount of damages, the
removing party has the burden of establishing by a preponderance of the evidence
that the amount in controversy exceeds $75,000.

Rasmussen v. State Farm Mut.

Auto. Ins. Co., 410 F.3d 1029, 1031 (8th Cir. 2005).

In the Eighth Circuit, the

amount in controversy is measured by “the value to the plaintiff of the right sought to
be enforced.”

Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 821 (8th Cir. 2011)

(quoting Advance Am. Servicing of Ark. v. McGinnis, 526 F.3d 1170, 1173 (8th Cir.
2008)).

“The jurisdictional fact . . . is not whether the damages are greater than the

requisite amount, but whether a fact finder might legally conclude they are.”

James

Neff Kramper Family Farm P’ship v. IBP, Inc., 393 F.3d 828, 833 (8th Cir. 2005)
(quoting Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002)).

“Once the removing

party has established by a preponderance of the evidence that the jurisdictional
minimum is satisfied, remand is only appropriate if the plaintiff can establish to a legal
certainty that the claim is less than the requisite amount.”

Bell v. Hershey Co., 557

F.3d 953, 956 (8th Cir. 2009).
Based on the allegations in the complaint, a fact finder might legally conclude
that the damages in this case are greater than $75,000, exclusive of interest and
costs.

In his affidavit, plaintiff states that he is “not seeking over Seventy-Five

Thousand Dollars ($75,000.00) in the above-captioned lawsuit.”
#16-1].

Affidavit [Doc.

However, Missouri law prohibits him from including a specific amount in his

prayer for relief.

“Where state law prohibits plaintiffs from specifying damages in
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their state court complaints, this Court and others in the Eighth Circuit have
considered a post-removal stipulation to determine whether jurisdiction has attached,
as long as the stipulation can be considered as clarifying rather than amending an
original pleading.”

Ingram v. Procter & Gamble Paper Products Co., No.

4:11-CV-549 (CAS), 2011 WL 1564060, at *2 (E.D. Mo. Apr. 25, 2011) (collecting
cases).

Here, plaintiff makes no stipulation that he will neither ask for nor accept an

amount in excess of $75,000 at trial.
In light of the foregoing, the Court cannot conclude to a legal certainty that the
jurisdictional amount at the time of removal did not exceed $75,000.

See, e.g.,

Schmidt v. Flesch, No. 4:05-CV-1498 (HEA), 2006 WL 1026952, at *2 (E.D. Mo. Apr.
13, 2006); Workman v. Kawasaki Motors Corp., U.S.A., 749 F. Supp. 1010, 1011
(W.D. Mo. 1990).

Based on the face of the complaint and the notice of removal, the

Court finds that it has subject matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [Doc. #16] is
denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 1st day of June, 2016.

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