Henninger v. Ashokkumar
MEMORANDUM AND ORDER - The Findings and Recommendation (filing 15 ) of the United States Magistrate Judge are adopted. The plaintiff's Motion to Remand Case to State Courts (filing 5 ) is granted. The defendant's Motion to Dismiss Seco nd Cause of Action-Injunction (filing 11) is dismissed for lack of jurisdiction. The plaintiff's Motion for Ruling Re: Attorney's Fees (filing 16 ) is denied. This action is remanded to the District Court of Lancaster County, Nebraska. Ordered by Judge John M. Gerrard. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
This case is before the Court on several matters: (1) the plaintiff's
Motion to Remand Case to State Courts (filing 5), (2) the defendant's Motion
to Dismiss Second Cause of Action—Injunction (filing 11), (3) the Findings
and Recommendation (filing 15) of the United States Magistrate Judge
recommending that the plaintiff's motion to remand be granted, and (4) the
plaintiff's Motion for Ruling Re: Attorney's Fees (filing 16). The Court will
adopt the Magistrate Judge's findings and recommendation and grant the
plaintiff's motion to remand. As a result, the defendant's motion to dismiss
will be dismissed for lack of jurisdiction. But the Court will deny the
plaintiff's motion for attorney fees, finding it to be without merit.
MOTION TO REMAND
The plaintiff's underlying claim is a state-law defamation claim that
was filed in state court. See filing 1-2. The background for this claim is
explained in this Court's decision in related litigation—effectively, the
plaintiff is suing the defendant for the allegations made by the defendant in
her own lawsuit against the plaintiff and his former colleagues at the
University of Nebraska-Lincoln (UNL). See Ashokkumar v. Elbaum, ___ F.
Supp. 2d ___, 2013 WL 1191191 (D. Neb. Mar. 15, 2013). The defendant
removed this case pursuant to 28 U.S.C. § 1441, claiming diversity
jurisdiction under 28 U.S.C. § 1332(a). Filing 1. The plaintiff moved to
remand the case to state court; the plaintiff argues that the amount in
controversy does not exceed $75,000, as required by § 1332(a). See filing 5.
As noted by the Magistrate Judge, in cases removed to federal court,
the defendant bears the burden of proving the court has jurisdiction, with all
doubts as to the propriety of exercising federal jurisdiction resolved in favor
of remand. Filing 15 at 2, (citing Cent. Iowa Power Co-op. v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009); Transit
Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th
Cir. 1997)). And where a complaint does not allege a specific amount of
damages, the party seeking to remove the case and invoke federal subjectmatter jurisdiction bears the burden of proving by a preponderance of the
evidence that the amount in controversy exceeds $75,000. Filing 15 at 2
(citing In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834
(8th Cir. 2003)). Where the plaintiff seeks injunctive relief the amount in
controversy is measured by the value of the object of the litigation. Filing 15
at 3 (citing James Neff Kramper Family Farm P'ship v. IBP, Inc., 393 F.3d
828, 833 (8th Cir. 2005) (quoting Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 347 (1977))).
To establish the amount in controversy, the defendant relies on the
federal funding and research grants the plaintiff received while he was
employed, and his salary as an associate professor in computer science. Filing
9 at 3. But as the Magistrate Judge found,
[The defendant]'s speculation regarding the potential
damage suffered by [the plaintiff] is not sufficient to meet her
burden. [The defendant]’s Notice of Removal makes the
conclusory statement that “upon information and belief, [the
defendant] asserts that [the plaintiff] seeks more than $75,000 in
damages.” The only evidence presented by [the defendant] is the
current salaries of associate professors at UNL from the 20122013 fiscal year. This information is of little, if any, evidentiary
value in deciding the amount in controversy. [The plaintiff] has
not been employed at UNL since 2008 and his amended
complaint does not assert the alleged defamatory statements
made by [the defendant] are preventing him from gaining
employment or have caused him to lose wages or research grants.
The defendant has also not met her burden of proving the
amount in controversy for the injunctive relief sought by the
plaintiff. That is, the defendant has made no attempt to assign a
value to, or provide evidence of, the value of the right at issue in
this case . . . .
Filing 15 at 4. Accordingly, the Magistrate Judge concluded that the Court
lacks subject-matter jurisdiction, and that the plaintiff's motion to remand
should be granted. Filing 15 at 4.
The Court notes that the defendant has not objected to the Magistrate
Judge's findings and recommendation. 28 U.S.C. § 636(b)(1) provides for de
novo review only when a party objected to the magistrate's findings or
recommendations. Peretz v. United States, 501 U.S. 923 (1991). The failure to
file an objection eliminates not only the need for de novo review, but any
review by the Court. Thomas v. Arn, 474 U.S. 140 (1985); Leonard v. Dorsey
& Whitney LLP, 553 F.3d 609 (8th Cir. 2009). The Court has nonetheless
reviewed the Magistrate Judge's findings and will adopt them.
The Court also notes the plaintiff's affidavit in support of his motion to
remand, in which the plaintiff avers that his losses are "significantly less"
than $75,000. Filing 6 at 2. The Court is aware that generally, a stipulation
that a plaintiff will not seek an award exceeding the jurisdictional amount
may be used to avoid removal only if filed before the removal. See Hargis v.
Access Capital Funding, LLC, 674 F.3d 783, 789 (8th Cir. 2012); but cf.
Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013). The Court
views this affidavit as being more significant, however, because it is not
simply stating that the plaintiff will not seek damages in excess of the
jurisdictional amount—it is evidence, from the plaintiff, that his actual
damages do not exceed the jurisdictional amount. The plaintiff is obviously in
a position to present evidence as to his own damages, and that evidence
would be compelling even had the defendant met her initial burden of
showing the amount in controversy.
In sum, the Court agrees with the Magistrate Judge that the amount in
controversy requirement is not met here. Therefore, the Court will adopt the
Magistrate Judge's findings and recommendation to that effect, and will
grant the plaintiff's motion to remand. And because federal jurisdiction is
lacking, the Court will dismiss the defendant's motion to dismiss.
The plaintiff's motion for attorney fees relies on 28 U.S.C. § 1447(c),
which provides that "[a]n order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a
result of the removal." The plaintiff contends there was no basis for removal,
and suggests that the defendant "purposefully delayed resolution" of the
plaintiff's claim. Filing 16 at 2. The Court disagrees.
Courts may award attorney fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal.
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Conversely, when
an objectively reasonable basis exists, fees should be denied. Id. The Court
finds that the defendant's arguments here, while ultimately unavailing, were
not unreasonable. The plaintiff's failure to specify an amount of damages in
his complaint left the defendant in a position to speculate.
And the Court sees no indication that the defendant sought removal in
an attempt to deliberately delay adjudication of the plaintiff's claim. While
the Court lacks jurisdiction to resolve the merits of the plaintiff's claim, in
the context of evaluating the defendant's motives for removal, the Court
notes that the plaintiff's pursuit of a temporary restraining order and
temporary injunction is legally dubious. See Sid Dillon Chevrolet-OldsmobilePontiac, Inc. v. Sullivan, 559 N.W.2d 740 (Neb. 1997); see generally Balboa
Island Village Inn, Inc. v. Lemen, 156 P.3d 339 (Cal. 2007). The Court can
conceive of no reason that the defendant would want to delay addressing the
merits of those requests, and the defendant's motion to dismiss suggests that
her intent was simply to choose a forum to which she believed she was
entitled—not to delay the proceedings. Therefore, the Court finds no merit to
the plaintiff's motion for attorney fees.
IT IS ORDERED:
The Findings and Recommendation (filing 15) of the United
States Magistrate Judge are adopted.
The plaintiff's Motion to Remand Case to State Courts
(filing 5) is granted.
The defendant's Motion to Dismiss Second Cause of
Action—Injunction (filing 11) is dismissed for lack of
The plaintiff's Motion for Ruling Re: Attorney's Fees (filing
16) is denied.
This action is remanded to the District Court of Lancaster
Dated this 30th day of April, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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