Walz v. FedEx Office and Print Services, Inc.
ORDER entered by Judge Nanette Laughrey. Walz's motion to remand [Doc. # 3] is GRANTED and the case is hereby REMANDED to the Circuit Court of Cole County, Missouri. (Kanies, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
FEDEX OFFICE AND PRINT SERVICES, )
Plaintiff Robert Walz moves to remand this diversity case back to the Circuit
Court of Cole County, Missouri [Doc. # 3]. Walz argues that this Court lacks subject
matter jurisdiction because Defendant FedEx Office and Print Services, Inc. (“FedEx”),
has not proven that the amount in controversy exceeds $75,000. For the reasons set forth
below, Walz’s motion to remand is GRANTED and the case is REMANDED.
On June 13, 2012, Walz filed suit against FedEx in the Circuit Court of Cole
County, Missouri, claiming discriminatory termination in violation of the Missouri
Human Rights Act (“MHRA”). [Doc. # 1-1 at 9]. Walz alleges that he incurred “actual
damages including, but not limited to, a loss of income, loss of employment benefits, loss
of self-esteem and enjoyment of life, embarrassment, humiliation, emotional distress and
mental anguish.” [Doc. # 1-1 at 9]. Walz seeks compensatory damages as well as
punitive damages and attorney’s fees. [Doc. # 1-1 at 10]. The complaint does not
specify the amount of damages sought.
FedEx filed its notice of removal in this case on July 17, 2012, asserting diversity
jurisdiction pursuant to 28 U.S.C. § 1332. [Doc. # 1 at 1]. It is undisputed that the
parties are diverse. Consequently, the sole question presented is whether the amount in
controversy exceeds the jurisdictional amount of $75,000. See § 1332(a).
The parties submitted evidence relevant to Walz’s claims for lost wages and
benefits. FedEx attached to its opposition brief the affidavit of Jackie Jalomo, Manager
of Compensation and Benefits for FedEx. Ms. Jalomo avers that, while employed by
FedEx, Walz received an annual salary of $50,064.80, and benefits worth $8,179.80 per
year. [Doc. # 7-1 at 1]. In response, Walz attached to his reply brief his own affidavit.
Walz avers that FedEx terminated his employment on or about October 14, 2011, and that
he subsequently secured other employment on or about March 7, 2012. [Doc. # 13-1 at
1]. Walz further attests that his new salary is $36,800.00. [Doc. # 13-1 at 1].
Where the complaint does not allege a specific amount of damages, the removing
party “must prove by a preponderance of the evidence that the amount in controversy
exceeds $75,000.” In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830,
834 (8th Cir. 2003). In making this determination, the question is not whether the
damages will exceed the jurisdictional amount, but whether a fact finder might legally
find that the damages exceed that amount. Bell v. Hershey Co., 557 F.3d 953, 959 (8th
Cir. 2009). While this is a relatively permissive standard, the removing party must still
provide “some specific facts or evidence demonstrating that the jurisdictional amount has
been met.” Hill v. Ford Motor Co., 324 F. Supp. 2d 1028, 1036 (E.D. Mo. 2004).
In addition, because removal restricts “the power of the states to resolve
controversies in their own courts,” removal requirements are strictly construed. Nichols
v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002); see also Gramc v. Millar
Elevator Co., 3 F. Supp. 2d 1082, 1083-84 (E.D. Mo. 1998) (“The amount in controversy
requirement . . . is strictly construed, as its underlying purpose is to limit the federal
courts’ diversity caseload.” (citing Snyder v. Harris, 394 U.S. 332, 339 (1969))).
Consequently, the Court must resolve all doubts about federal jurisdiction in favor of
remand. Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, Inc.,
561 F.3d 904, 912 (8th Cir. 2009).
Based on the evidence provided by the parties, Walz’s damages for lost wages and
benefits appear to fall well below the jurisdictional amount. At present, based on Walz’s
evidence of mitigation, Walz’s claims for back pay and benefits are worth approximately
$36,777.93. Nearly two years would have to pass for this amount to exceed $75,000.
This does not end the discussion, however, because the Court must also take into account
Walz’s claims for emotional distress, punitive damages, and attorney’s fees. See
Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 766 (8th Cir. 2001) (noting that
punitive damages and statutory attorney’s fees count toward the jurisdictional minimum
for diversity jurisdiction).
With respect to Walz’s claim for emotional distress, the Court notes that Walz’s
complaint contains only the bare allegation that Walz suffered “loss of self-esteem and
enjoyment of life, embarrassment, humiliation, emotional distress and mental anguish.”
[Doc. # 1-1 at 9]. Although FedEx cites several cases where the Eight Circuit affirmed
substantial emotional distress awards in MHRA cases [Doc. # 7 at 4-5], FedEx does not
discuss whether those cases are at all factually similar to the present case. Cf. Eidson v.
Midwest Vet. Supply Co., No. 06-0454-CV-W-FJG, 2006 WL 3060139, at *5 (W.D. Mo.
Oct. 25, 2006) (finding no diversity jurisdiction where “the facts as presented . . .
differ[ed] substantially from reported MHRA cases in which plaintiffs have been
awarded emotional distress damages exceeding . . . the jurisdictional minimum.”). The
fact that such awards may be possible in certain circumstances does not, on its own, make
it any more likely that such an amount might be awarded in this case. In fact, the court in
Eidson found that, in cases that alleged emotional distress without any claim of medical
treatment or medically diagnosable condition, plaintiffs who did recover for emotional
distress recovered very modest amounts. See id. at *4. The complaint in this case, which
is all that is before the Court on this issue, contains no allegations of a medically
diagnosable illness or medical treatment.
FedEx’s argument is similarly deficient with regard to punitive damages. FedEx
argues that Walz’s complaint requests punitive damages but does not discuss whether the
allegations in Walz’s complaint, if proven, might justify such an award. Essentially,
FedEx asks the Court to conclude that the amount in controversy in this case more likely
than not exceeds $75,000 simply because punitive damage awards are available in select
However, the mere fact that the plaintiff has asserted a claim for punitive
damages does not relieve the defendant, as the removing party, of its
burden to establish the propriety of removal jurisdiction nor necessarily
establish that it is more likely than not the case that the amount in
controversy will exceed [the jurisdictional minimum]. . . . Thus, when a
party challenges the amount in controversy, the district court errs by
looking only at the allegation of punitive or exemplary damages as
sufficing to establish the requisite amount in controversy.
McCorkindale v. Am. Home Assurance Co./A.I.C., 909 F. Supp. 646, 655 (N.D. Iowa
1995); see also State of Mo. ex rel. Pemiscot Cnty. v. Western Sur. Co., 51 F.3d 170, 173
(8th Cir. 1995) (“When determining the amount in controversy, we scrutinize a claim for
punitive damages more closely than a claim for actual damages to ensure that Congress’s
limits on diversity jurisdiction are properly observed.”); Rollwitz v. Burlington N.R.R.,
507 F. Supp. 582, 587 (D. Mont. 1981) (“The defendant cannot, by unsupported and
contested averment, unilaterally invest this Court with jurisdiction; . . . .”).
On the record as it stands now, the Court cannot conclude that it is more likely
than not that Walz could recover punitive damages in an amount that would satisfy the
jurisdictional minimum in this case. See Brown v. Bank of Am. Trust & Sav. Ass’n, 281
F. Supp. 82, 84 (N.D. Ill. 1968) (“Where, as here, punitive damages are involved, the
judge can exercise more discretion in determining whether the damages as claimed could
be recovered.”). FedEx points to some significant punitive damage awards in MHRA
cases. [Doc. # 7 at 4-5]. But “[d]amage claims raised in other cases do not amount to the
type of ‘affirmative showing’ of . . . jurisdiction that is required of parties seeking
removal.” Coleman v. S. Norfolk, 734 F. Supp. 719, 721 (E.D. La. 1990).
Moreover, under Missouri law, a plaintiff can establish unlawful employment
discrimination by showing that discriminatory bias was merely a contributing factor in an
employment decision, as opposed to a substantial or determining factor. Daugherty v.
City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. 2007) (en banc). Consequently, a
plaintiff may readily recover without demonstrating the type of malice or reckless
indifference required to justify punitive damages. FedEx offers no evidence, authority, or
argument that suggests punitive damages could be awarded based on the allegations
contained in Walz’s complaint. Cf. Wiatt v. State Farm Ins. Cos., 560 F. Supp. 2d 1068,
1078-79 (D.N.M. 2007) (granting remand where the removing party did not set forth any
details or particular facts regarding claims for punitive damages, statutory damages, or
attorney’s fees). This is particularly problematic considering FedEx must rely heavily on
the punitive damages claim in order to establish jurisdiction because, as discussed
previously, the compensatory damages appear to fall well below the jurisdictional
The record is even sparser with respect to the claim for attorney’s fees. There is
no evidence or argument regarding any fees incurred to date or the likely amount of fees
that could be awarded. Moreover, “jurisdiction is measured by the amount . . . as of the
time of the suit, not by the end result.” OnePoint Solutions, LLC v. Borchert, 486 F.3d
342, 349 (8th Cir. 2007). Consequently, the Court is reluctant to speculate too liberally
with regard to attorney’s fees because they are avoidable and subject o variation based on
how the case proceeds. See Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 959
(7th Cir. 1998) (noting that legal services that have not been and may never be incurred
are not “in controversy” at the outset of the suit). In any event, it is FedEx’s burden to
prove that the jurisdictional requirements are satisfied and all doubt must be resolved in
favor of remand. Cent. Iowa Power Coop., 561 F.3d at 912. Thus, FedEx’s conclusory
reference to the availability of attorney’s fees does not suffice to prove that the amount in
controversy requirement is satisfied.
Finally, contrary to FedEx’s contention, the fact that Walz has not submitted an
affidavit agreeing to cap his damages at an amount less than $75,000.00 is inapposite.
Such a stipulation is not necessary for a plaintiff to succeed on a motion to remand.
Gramc, 3 F. Supp. 2d at 1084. In the cases cited by FedEx, the plaintiffs were required to
prove to a legal certainty that damages were below the jurisdictional amount, either
because the decision predated a definitive resolution of what standard applies when
assessing jurisdictional sufficiency, see Dodge v. Jenny Craig Weight Loss Ctrs., Inc.,
No. 4:94CV2084MLM, 1995 WL 406960, at *1-2 (E.D. Mo. Jan. 10, 1995), or because
the court first concluded that the defendant met its burden of proving that the amount in
controversy exceeded the jurisdictional amount, see Brooks v. Kelly, No. 4:11CV01510,
2011 WL 6009657, at *3 (E.D. Mo. Dec. 1, 2011); see also Bell, 557 F.3d at 956 (“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 for less than the requisite amount.”
(emphasis added)). Because FedEx has not first met its burden in this case, the lack of a
stipulation by Walz does not affect the result.
In sum, the provable damages are currently well below the jurisdictional minimum
and FedEx’s further attempts to prove that the amount in controversy exceeds the
jurisdictional amount are based on conclusory assertions and conjecture. Although
damages in excess of the jurisdictional amount were awarded in some MHRA cases,
other cases cited by Walz demonstrate that a lesser award is equally possible in this case.
In weighing these contrary possibilities, the Court must resolve all doubt in favor of
remand. See Cent. Iowa Power Coop., 561 F.3d at 912. Furthermore, on review of the
allegations in the complaint, a lesser award seems more likely and FedEx presents no
evidence or argument that suggests otherwise. While it is a close call, it is FedEx’s
burden to prove that the jurisdictional requirements are met and FedEx has failed to prove
by a preponderance of the evidence that the amount in controversy exceeds $75,000.00.
For the foregoing reasons, Walz’s motion to remand [Doc. # 3] is GRANTED and
the case is hereby REMANDED to the Circuit Court of Cole County, Missouri.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 2, 2012
Jefferson City, Missouri
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