Gambill et al v. General Motors, LLC
MEMORANDUM OPINION AND ORDER: Accordingly, and for the foregoing reasons, Plaintiffs' motion to remand is DENIED. The Clerk of Court is directed to terminate 14-MD-2543 Docket No. 775 and 15-CV-2035 Docket No. 26. (Signed by Judge Jesse M. Furman on 5/5/2015) Filed In Associated Cases: 1:14-md-02543-JMF, 1:15-cv-02035-JMF(tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
This Document Relates To
Gambill v. General Motors LLC, 15-CV-2035 (JMF)
JESSE M. FURMAN, United States District Judge:
Courtney and Shelia Gambill, Plaintiffs in the above-captioned member case in this
multi-district litigation, move to remand their case to the Kentucky state court from which it was
removed by Defendant General Motors LLC (“New GM”). In removing the case, New GM
invoked the federal courts’ diversity jurisdiction established by Title 28, United States Code,
Section 1332. Plaintiffs move to remand, contending that the federal courts lack subject-matter
jurisdiction pursuant to Section 1332 because the statute’s amount-in-controversy requirement
has not been met. Upon review of the parties’ submissions (14-MD-2543 Docket Nos. 775, 776,
844, and 929; 15-CV-2035 Docket No. 39), the motion is DENIED.
The law relevant to Plaintiffs’ motion can be stated briefly. Section 1332 endows the
federal courts with subject-matter jurisdiction in cases where the amount in controversy exceeds
$75,000 and the parties are of diverse citizenship. See 28 U.S.C. § 1332(a); see also Fireman’s
Fund Ins. Co. v. TD Banknorth Ins. Agency Inc., 644 F.3d 166, 169 (2d Cir. 2011). If an action
meeting those criteria is originally brought in state court, it “may be removed by the defendant or
the defendants, to the district court of the United States for the district and division embracing
the place where such action is pending.” 28 U.S.C. § 1441(a). Courts must consider the amount
in controversy at the time of removal; accordingly, “a plaintiff cannot seek to deprive a federal
court of jurisdiction by reducing her demand to $75,000 or less once the jurisdictional threshold
has been satisfied.” Yong Qin Luo v. Mikel, 625 F.3d 772, 776 (2d Cir. 2010).
Pursuant to Section 1446, which sets forth procedures governing removal, “the notice of
removal may assert the amount in controversy if the initial pleading seeks . . . a money judgment,
but the State practice either does not permit demand for a specific sum or permits recovery of
damages in excess of the amount demanded.” Id. § 1446(c)(2)(A). Removal is proper under this
subsection “if the district court finds, by the preponderance of the evidence, that the amount in
controversy exceeds the amount specified in section 1332(a).” Id. § 1446(c)(2)(B). As the
Supreme Court has held in explaining the subsection — which was added to Section 1446 as part
of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63,
§ 103, 125 Stat. 758, 760 (2011) (the “JVCA”) — “the defendant’s amount-in-controversy
allegation [set forth in the notice of removal] should be accepted when not contested by the
plaintiff or questioned by the court . . . If the plaintiff contests the defendant’s allegation . . . both
sides submit proof and the court decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied.” Dart Cherokee Basin Operating Co. v.
Owens, 135 S. Ct. 547, 553-54 (2014).
Because Plaintiffs’ complaint, filed in Kentucky state court, did not demand a specific
amount of damages (see Ky. R. Civ. P. 8.01 (“In any action for unliquidated damages the prayer
for damages in any pleading shall not recite any sum as alleged damages other than an allegation
that damages are in excess of any minimum dollar amount necessary to establish the jurisdiction
of the court”), New GM removed Plaintiffs’ case based on assertions in its Notice of Removal
that — in light of the Complaint’s allegations of “severe and permanently crippling and disabling
bodily injuries” suffered by Courtney Gambill (see 15-CV-2035 Docket No. 1 (“Notice of
Removal”), Ex. C (“Compl.”) ¶ 14), and based on the fact that Plaintiffs sought punitive
damages (id. ¶ 13) — “[i]t is evident that the amount in controversy exceeds $75,000” (Notice of
Removal ¶ 11). 1 Plaintiffs challenge New GM’s assertions, arguing that the company has not
established that the amount-in-controversy requirement has been met in their case. (See Mem.
Supp. Renewed Mot. Remand (14-MD-2543 Docket No. 776) (“Pls.’ Mem.”) 4-6). 2 The Court
disagrees, and finds — based not only on the parties’ memoranda but also on the parties’
supplemental submissions made at the Court’s behest (14-MD-2543 Docket Nos. 901 & 929; 15CV-2035 Docket No. 39) — that New GM has shown, by a preponderance of the evidence, that
the amount in controversy exceeds $75,000.
The Court bases its finding on two inescapable facts in this case. First, Plaintiffs’
Complaint asserts, inter alia, that Courtney Gambill “incurred hospital and medical bills for
treatment of her permanently disabling injuries”; sustained “great and severe physical and mental
pain and suffering”; and “has had her ability to work and earn money permanently impaired.”
(Compl. ¶ 14). Although Plaintiffs are correct that Courtney Gambill’s medical costs to date do
not exceed $75,000 (see 15-CV-2035 Docket No. 39, at 1), Courtney Gambill appears to assert
claims for damages based on future medical expenses and loss of income, not to mention future
non-economic damages such as pain and suffering (Compl. ¶ 14 (asserting that Courtney
GM correctly notes in its Notice of Removal, it is sufficient to find that Courtney
Gambill’s damages meet the amount-in-controversy requirement, as “where the other elements
of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-incontroversy requirement, § 1367 does authorize supplemental jurisdiction over the claims of
other plaintiffs in the same Article III case or controversy, even if those claims are for less than
the jurisdictional amount.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549
(2005); see Notice of Removal ¶ 9 n.1.
Plaintiffs do not dispute that, as citizens of Kentucky, they are completely diverse from
New GM, a citizen of Michigan and Delaware. (Notice of Removal ¶ 7; Compl. ¶ 1; see Pls.’
Gambill “will lose wages in the future . . . all to her damage and detriment”; “will incur . . .
medical expenses in the future all to her damages and detriment”; and “will continue to have to
endure [physical and mental pain and suffering] in the future, including the loss of enjoyment of
life all to her damage”). See Dill v. Ron’s Golf Car Rental, Inc., No. 12-CV-00137 (JBA), 2013
WL 3716382, at *4 (D. Conn. July 12, 2013) (considering future loss of income in determining
amount in controversy).
What is more, additional documents submitted by New GM — including a letter
submitted to Plaintiffs’ attorney by Courtney Gambill’s doctor regarding the extent of her
injuries, included as part of their Plaintiff Fact Sheet (“PFS”) submissions 3 — all but confirm
that Courtney Gambill’s claimed compensatory damages more likely than not exceed $75,000.
Indeed, courts have frequently found that injuries of the sort suffered by Courtney Gambill are
sufficient to meet the amount-in-controversy requirement. See, e.g., Zido v. Werner Enters., Inc.,
498 F. Supp. 2d 512, 514 & n.3 (N.D.N.Y. 2006) (finding that damages exceeded $75,000 when
the plaintiffs sought to recover non-economic losses from personal injury and loss of consortium,
along with economic losses from medical expenses and other costs); James v. Gardner, No. 04CV-1380 (DGT) (KAM), 2004 WL 2624004, at *4 (E.D.N.Y. Nov. 10, 2004) (finding amountin-controversy requirement to be met where the complaint was silent on damages, but alleged
that the plaintiff suffered “severe and permanent personal injuries”); Scott v. Home Depot U.S.A.,
Inc., No. 11-CV-62426 (JIC), 2012 WL 86986, at *3 (S.D. Fla. Jan. 11, 2012) (finding that,
based on “Plaintiff’s injuries, his surgery, and his permanent physical impairment, as well as the
Plaintiffs’ PFS submissions, including portions referenced in New GM’s supplemental
letter and attached as exhibits, include Courtney Gambill’s medical information and employment
history. Pursuant to Rule 6(A) of this Court’s Individual Rules and Practices in Civil Cases, a
party may redact such information without prior Court approval. Accordingly, New GM
redacted and filed under seal certain portions of its supplemental letter.
$38,462.27 in medical expenses already incurred and the Court’s own judicial experience and
common sense,” the amount-in-controversy requirement had been met). And, as the cases New
GM cites in its supplemental letter make clear (14-MD-2543 Docket No. 929, at 3), courts not
infrequently award damages far in excess of $75,000 based on injuries as or less severe than
those asserted by Courtney Gambill. See Bercy v. Am. Airlines, Inc., No. 09-CV-1750 (ALC) ,
2011 WL 2490716, at *2 (E.D.N.Y. June 22, 2011) (noting that in cases where a complaint does
not state a specific demand for damages, a court may consider, among other factors, “whether
plaintiff’s alleged injuries have yielded awards in excess of $75,000 in other actions”).
Second, although Courtney Gambill’s claimed compensatory damages are themselves
sufficient to meet the amount-in-controversy requirement in this case, she and Shelia Gambill
seek more: their Complaint also asserts a claim for punitive damages based on “the fraudulent
and wrongful conduct of” New GM. (Compl. ¶ 13). “Punitive damages, if permitted under the
controlling law, do count toward the amount in controversy for purposes of diversity.” Cohen v.
Narragansett Bay Ins. Co., No. 14-CV-3623 (PKC), 2014 WL 4701167, at *3 (E.D.N.Y. Sept.
23, 2014) (internal quotation marks omitted); see Ky. Rev. Stat. § 411.184(2) (providing that a
plaintiff is entitled to punitive damages “upon proving, by clear and convincing evidence, that
the defendant from whom such damages are sought acted toward the plaintiff with oppression,
fraud or malice. It is true that Plaintiffs do not seek a specific amount of punitive damages. But
the Court finds that their claims for punitive damages, when combined with the other damages
that they are seeking, are more than enough to satisfy the amount-in-controversy requirement.
Cf. Kaminski v. Polish & Slavic Fed. Credit Union, No. 06-CV-688 (ARR) (LB), 2007 WL
2343673, at *5 (E.D.N.Y. Aug. 13, 2007) (finding that the plaintiff’s damages, including an
unspecified amount of punitive damages, met Section 1332’s amount-in-controversy
As a final matter, the Court notes that Plaintiffs submitted affidavits declaring that they
“are seeking less than $75,000” from New GM. (Renewed Mot. To Remand (14-MD-2543
Docket No. 775), Exs. 1 & 2). Nevertheless, the Court declines to afford these post hoc
affidavits any weight in calculating the amount in controversy that existed at the time of removal,
substantially for the reasons stated in New GM’s memorandum. (Def. General Motors LLC’s
Resp. Opp’n Pls.’ Renewed Mot. Remand (14-MD-2543 Docket No. 844) 7-10).
Accordingly, and for the foregoing reasons, Plaintiffs’ motion to remand is DENIED.
The Clerk of Court is directed to terminate 14-MD-2543 Docket No. 775 and 15-CV-2035
Docket No. 26.
Dated: May 5, 2015
New York, New York
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