Carlyon v. Counts

Filing 12

MEMORANDUM AND ORDER. (See Full Order. ) IT IS HEREBY ORDERED that plaintiff's motion to remand 9 is denied. Signed by District Judge Catherine D. Perry on 7/14/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PENNY CARLYON,
Plaintiff,
vs.
DAVID COUNTS,
Defendant.

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Case No. 4:16 CV 776 CDP

MEMORANDUM AND ORDER
Plaintiff Penny Carlyon claims she was injured when defendant David
Counts’ negligence caused him to rear-end Carlyon’s car with his own. Carlyon
originally filed this tort action in Missouri state court. Counts has removed the
case to this court citing federal diversity jurisdiction under 28 U.S.C. § 1332. The
matter is before me now on Carlyon’s motion to remand, in which she claims there
is no federal diversity jurisdiction because Counts has failed to prove the requisite
amount in controversy. Based on the amount of Carlyon’s settlement demand as
well as her alleged injuries, I find that the amount in controversy exceeds $75,000,
and I am therefore denying the motion to remand.
A defendant normally may remove an action from state court to federal court
if the federal court would have had original jurisdiction over the action. 28 U.S.C.

§ 1441. A federal court has diversity jurisdiction where the matter in controversy
exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a).
A defendant seeking removal has the burden of establishing diversity
jurisdiction. Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.2009). A defendant
meets that burden by proving diversity of citizenship and amount in controversy by
a “preponderance of the evidence.” In re Prempro Prods. Liab. Litig., 591 F.3d
613, 620 (8th Cir.2010); Bell, 557 F.3d at 956. The defendant's burden is the same
whether the plaintiff's complaint seeks an amount of damages below the
jurisdictional requirement or does not allege a specific dollar amount at all. Bell,
557 F.3d at 956. Once the defendant satisfies the burden, remand is only
appropriate if the plaintiff can establish that the requirements for diversity
jurisdiction have not been met to a “legal certainty.” Id. Here, the complaint does
not seek a specific amount of damages.1 Therefore, when this case was removed,
Counts had the burden of establishing diversity jurisdiction by a preponderance of
the evidence. Id.
In proving the amount in controversy, 2 Counts has referenced Carlyon’s presuit settlement demand and, in response to the motion to remand, has produced a
letter from Carlyon’s counsel in which a formal demand for $100,000 was made.
1

Under Missouri Supreme Court Rule 55.05, a plaintiff alleging a tort claim is not permitted to
plead a specific dollar amount, except to determine jurisdiction.
2

Diversity of citizenship has been established and is not disputed.

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Counts has also pointed to the injuries Carlyon alleges she sustained to her head,
neck and back. Specifically, in her petition Carlyon claims she has suffered
“disabling injuries” to her head, skull, neck, back and multiple other parts of her
body. She claims the injuries are “serious, permanent and progressive in nature.”
In support of her opposing assertion that the jurisdictional amount in controversy is
not met, Carlyon notes only that Counts made a settlement offer to her for an
amount of $40,000.
The evidence a defendant presents to support removal may include
settlement offers by the plaintiff that exceed the jurisdictional amount. Dozier v.
USAA Casualty Ins., No. 4:15cv279-JAR, 2016 WL 629029, at *2 (E.D. Mo. Feb.
17, 2016). Demand letters alone do not resolve the issue, but they are relevant
evidence. McGuire v. J.B. Hunt Transp., Inc., No. 4:10CV746MLM, 2010 WL
2399550, at *3 (E.D. Mo. June 10, 2010). Here, the amount of the settlement offer
is supported by the allegations in Carlyon’s complaint of severe, permanent
injuries that will continue to plague her. In light of all this, Counts has met his
burden of establishing by a preponderance of evidence an amount in controversy
that exceeds $75,000. See Prater v. Ball, No. 12-CV-3493-S-DGK, 2013 WL
1755549, at *2 (W.D. Mo. Apr. 24, 2013) (relying on both a settlement offer and
damages alleged in the complaint to support a conclusion that amount in
controversy exceeded $75,000).
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Because Carlyon has failed to submit evidence establishing to a legal
certainty that the amount at issue is less than $75,000, I conclude jurisdictional
requirements for removal have been met.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [9] is denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of July, 2016.

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