Burke v. PGA Tour, Inc.

Filing 11

ORDER that the matter of Burke v. PGA Tour, Inc., case number 2:13-cv-00803-JCM-PAL, be remanded back to state court. Signed by Judge James C. Mahan on 6/27/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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GEORGIANNA BURKE,

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2:13-CV-803 JCM (PAL)

Plaintiff(s),

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v.
PGA TOUR, INC.,

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Defendant(s).

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ORDER
Presently before the court is the matter of Burke v. PGA Tour, Inc., case number 2:13-cv-

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00803-JCM-PAL.

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Defendant removed this action from state court pursuant to 28 U.S.C. § 1441(b). Defendant

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cited this court’s diversity jurisdiction, 28 U.S.C. § 1332, as the basis for removal. Plaintiff is a

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Nevada citizen and defendant is a Maryland corporation with its principal place of business in

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Florida. Plaintiff’s only cause of action is for negligence, a state law cause of action.

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After reviewing the petition for removal and the statement regarding removal, this court

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issued an order to show cause why this case should not be sua sponte remanded back to state court.

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(Doc. # 9). After reviewing the relevant documents, this court was unconvinced the amount in

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controversy exceeded $75,000, and ordered defendant to file supplemental briefing on the issue.

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Defendant filed a supplemental briefing. (See doc. # 10). After reviewing the supplement,

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the court finds remand is appropriate because it does not have jurisdiction for the reasons stated

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infra.

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James C. Mahan
U.S. District Judge

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There is a strong presumption against diversity jurisdiction, especially in removal cases, and

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federal jurisdiction “must be rejected if there is any doubt as the to the right of removal...” Gaus v.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d

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1062, 1064 (9th Cir. 1979)). The burden of proof for removal is on the defendant. See Gaus, 980

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F.2d at 566 (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990)).

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Finally, “when the plaintiff fails to plead a specific amount of damages,” such as in this case, “the

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defendant seeking removal must prove by a preponderance of the evidence that the amount in

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controversy requirement has been met.” Lowdermilk v. U.S. Bank National Ass’n., 479 F.3d 994,

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998 (9th Cir. 2007).

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Defendant attaches certain medical records to its supplement and states the medical records

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demonstrate the amount in controversy exceeds $75,000. Defendant attached hundreds of pages of

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medical records, but does not cite to a specific operation or treatment procedure (or a combination

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of operations or treatment procedures) that total over $75,000. The defendant directs the court to

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sift through hundreds of pages of records without citation to specific documents. Additionally, many

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of the medical records are from treatment plaintiff received prior to the incident in this suit–i.e.,

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much of the medical records are irrelevant for establishing a minimum amount of controversy

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because they document treatment that occurred prior to the incident that allegedly injured plaintiff

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in this case.

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Finally, defendant argues that plaintiff may need a lumbar fusion surgery. This surgery could

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cost anywhere from $160,000 to $200,000. The problem for defendant is that no doctor has currently

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stated that plaintiff needs a lumbar fusion surgery, so it cannot be counted towards the $75,000.

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Defendant has not provided any calculations for the court. The defendant has only provided

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conclusory statements. A preponderance of the evidence demonstrates that the minimum amount

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in controversy is not satisfied and that this court does not have jurisdiction.

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...

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...

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...

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James C. Mahan
U.S. District Judge

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the matter of Burke v. PGA
Tour, Inc., case number 2:13-cv-00803-JCM-PAL, be remanded back to state court.
DATED June 27, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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