Thomas v. Great Western Bank

Filing 16

REPORT AND RECOMMENDATION that MOTION to Remand 9 be denied. Pursuant to NECivR 72.3, a party may object to this Report and Recommendation by filing an "Objection to Report and Recommendation" within 10 days after being served with the recommendation. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R U D Y M. THOMAS, P l a i n t i f f, vs. G R E A T WESTERN BANK, D efe n d a n t. ) ) ) ) ) ) ) ) )

8 :0 8 C V 3 7 0 R E P O R T AND R E C O M M E N D A T IO N

T h is matter is before the court on plaintiff's motion (Doc. 9) to remand this matter to th e Douglas County District Court. The matter has been fully briefed. For the reasons d is c u ss e d below, I recommend that the motion be denied. F A C T U A L BACKGROUND P la in tif f was formerly employed by Great Western Bank (GWB) as its Executive Vice P r e sid e n t and Chief Investment Officer. In December 2002, he and GWB entered into an " E m p lo ym e n t and Revenue Sharing Agreement." Plaintiff alleges he was entitled to receive b o n u s e s pursuant to paragraphs 3 and 4 of the Agreement, plus payment for all earned but u n p a id vacation. In his state court complaint, plaintiff sought damages under the Nebraska W a g e Payment and Collection Act, Neb. Rev. Stat. § 48-1231 ("NWPCA"). in the amount of ... $235,899.22 together with any additional sums found due t o [plaintiff] by reason of [GWB's] failure to pay the bonus due, earned v a c a tio n and any additional bonus due him together with the cost of this a c tio n , attorney fees 1 and interest all pursuant to Nebraska Statute and in p a rticu lar the Nebraska Wage Payment Act. (D o c . 1-2 at p. 3/11)

Neb. Rev. Stat. § 48-1231 provides, in part: "If an employee establishes a claim and s e c u re s judgment on the claim, such employee shall be entitled to recover (1) the full amount o f the judgment and all costs of such suit and (2) if such employee has employed an attorney in the case, an amount for attorney's fees assessed by the court, which fees shall not be less th a n twenty-five percent of the unpaid wages." (Emphasis added).

1

T h e state court complaint was filed on July 17, 2008. GWB was served with process o n July 21, 2008. On July 24, 2008, GWB paid plaintiff, through its payroll system, the a m o u n ts of $209,545.49 pursuant to Agreement ¶ 4; $5,911.48 pursuant to Agreement ¶ 3 (c )); and $15,556.93 for accrued vacation. GWB removed the case to federal court on A u g u s t 14, 2008. L E G A L ANALYSIS P u r s u a n t to 28 U.S.C. § 1332(a), the federal district court has diversity jurisdiction " w h e re the matter in controversy exceeds the sum or value of $75,000." Section 1332(a) re q u ire s that the amount in controversy be computed "exclusive of interest and costs." When c a lcu latin g the amount in controversy, "statutory attorney fees" are to be included in the total, R a s m u s s e n v. State Farm Mut. Auto. Ins. Co., 410 F.3d 1029, 1031 (8th Cir. 2005), as are s ta tu to ry penalties. Mates v. Butterball, LLC, 2007 WL 2407031 at*2, Case No. 4:07CV3130 (D . Neb., Aug. 20, 2007) (citing Peacock, Inc. v. Stuyvesant Ins. Co., 332 F .2d 499, 501-02 (8th Cir. 1964)). In general, the party invoking federal jurisdiction bears the burden of proving the ju ris d ic tio n a l requirements. OnePoint Solutions, LLC v. Borchert, 486 F.3d 342 (8th Cir. 2 0 0 7 ); Rasmussen v. State Farm Mut. Auto. Ins. Co., 410 F.3d at 1031. The facts establishing th e jurisdictional amount must be determined as of the time of removal. See James Neff K r a m p e r Family Farm Partnership v. IBP, Inc., 393 F.3d 828, 831 (8th Cir. 2005). The sum c la im e d by the plaintiff generally controls if the claim is apparently made in good faith. See S t. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Notwithstanding GWB's payment of $231,013.90 to the plaintiff on July 24, 2008, the state court complaint was not amended, and the issues of attorney's fees and statutory p e n a ltie s remained in dispute. On the face of the pleading, at the time of the removal, the p la in tif f still sought the recovery of $235,899.22, plus attorney's fees and penalties based on th a t amount.2

"[T]he Nebraska Wage Payment and Collection Act applies only to actions to recover w a g e s due the employee for labor or services performed for the employer. The act does not a p p ly to severance payment which becomes due upon termination of employment." Babb v . United Food and Commercial Workers Dist. Union, Local 271, 233 Neb. 826, 832, 448 N .W .2 d 168, 172 (1989). The defendant has not yet argued that any of the claimed amounts a re severance payments not covered by the NWPCA. Cf. Mates v. Butterball, LLC, 2007 WL 2 4 0 7 0 3 1 , Case No. 4:07CV3130 (D. Neb., Aug. 20, 2007). -2 -

2

T h e court finds that the matter in controversy exceeded the sum or value of $75,000 a t the time of removal. Therefore, I T IS RECOMMENDED that plaintiff's Motion to Remand (Doc. 9) be denied. P u r s u a n t to NECivR 72.3, a party may object to a this Report and R e c o m m e n d a tio n by filing an "Objection to Report and Recommendation" w i th in ten (10) days after being served with the recommendation. The sta tem e n t of objection shall specify those portions of the recommendation to w h ich the party objects and the basis of the objection. The objecting party shall f ile contemporaneously with the statement of objection a brief setting forth the p a rty's arguments that the magistrate judge's recommendation should be re v ie w e d de novo and a different disposition made. D A T E D November 12, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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