Carter v. Bridgestone Americas Inc et al

Filing 21

ORDER granting 14 Motion to Remand to State Court. Clerk's Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by Honorable Patrick Michael Duffy on July 31, 2013.(prei, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Amber Carter,

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Plaintiff,
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v.
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Bridgestone Americas, Inc.,
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Defendant.
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___________________________________ )

Civil Action No.: 2:13-CV-00287-PMD

ORDER

This matter is before the Court upon Plaintiff’s Motion to Remand (“Motion”) pursuant
to 28 U.S.C. § 1447. Plaintiff argues that the amount in controversy requirement of 28 U.S.C. §
1332 is not met, and therefore, the Court lacks subject matter jurisdiction. The Court has
reviewed the record and the memoranda of counsel. For the reasons set forth below, Plaintiff’s
Motion is granted.
BACKGROUND/ PROCEDURAL HISTORY
Plaintiff, a South Carolina citizen, sued Defendant Bridgestone Americas Tire
Operations, Inc.1 (“BATO”), a Delaware limited liability company with its principal place of
business in Tennessee, and Gene Reed Enterprises (“Gene Reed”), an automobile sales business
and a citizen of South Carolina, for injuries arising out of an accident allegedly caused by a tire
manufactured by BATO and sold to Plaintiff by Gene Reed. Plaintiff alleges that on or about
July 19, 2009, a tire “failed and shredded causing her to lose control of her motor vehicle and
careen from the roadway and strike an embankment.” Pl.’s Am. Compl. ¶ 6. Plaintiff states the
“vehicle was damaged and she was physically and emotionally harmed and traumatized” as a

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Improperly identified in the caption as Bridgestone Americas, Inc.
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result of this incident. Id. at ¶ 8. The Complaint does not request a specific amount of damages,
instead asking generally for compensatory damages and such other relief as this Court deems just
and necessary. Id. at ¶ 15.
This action was originally filed in the Court of Common Pleas, Charleston County, South
Carolina, on July 19, 2012.

On October 22, 2012, Plaintiff dismissed Gene Reed “with

prejudice.” See ECF No. 1, Exh. 2. Thereafter, Plaintiff filed an Amended Complaint, but
improperly named Gene Reed as a defendant. The state court entered an order striking Gene
Reed from the caption of this case and any reference thereto. On January 31, 2013, Defendant,
within thirty days of learning about Gene Reed’s dismissal from the case, filed with this Court a
Notice of Removal based upon diversity jurisdiction. On June 22, 2013, Plaintiff filed the
Motion now before the Court. Plaintiff attached an exhibit entitled “Declaration of Value in
Controversy” (“Declaration”) whereby Plaintiff, by and through her attorney, declares that the
amount in controversy is no more than $60,000.00. See ECF. No. 14, Exh. 1. This Declaration is
signed only by Plaintiff’s attorney. On July 3, 2013, BATO filed a Memorandum in Opposition
arguing that remand is improper because the post-removal stipulation (i.e., the Declaration) is
both defective and not binding and Plaintiff’s Motion is untimely.2 Plaintiff filed a Reply on
July 15, 2013, and attached a notarized affidavit wherein she states that she “will not seek to
recoup or execute collection for any amount beyond the principle amount declared,” and she
“agree[s] that the value of the amount in controversy is not more than $60,000.00.” ECF No. 19,
Exh. 1.

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The Court will not address Defendant’s untimely argument as the rule clearly states that the
thirty day time frame for filing a motion to remand applies to defects other than lack of subject
matter jurisdiction. See 28 U.S.C. 1447(c).
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DISCUSSION
The sole issue before the Court is whether the $75,000.00 amount in controversy
requirement of diversity jurisdiction is met. Plaintiff asserts in her Reply that the Declaration is
determinative. Defendant argues that Plaintiff could have limited her claim “for all purposes” as
permitted by South Carolina Rule of Civil Procedure 8(a) or sought leave to amend her
Complaint. Instead, Plaintiff filed a defective stipulation, signed only by her lawyer. As such,
Defendant contends that the Court should deny Plaintiff’s Motion because the stipulation of
damages is not a binding statement concerning the amount in controversy.
Without a basis for federal subject matter jurisdiction, the Court must remand the case to
state court. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”). Moreover, the
removal statute is to be strictly construed and doubts resolved in favor of remanding the case to
state court. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). The
burden of demonstrating jurisdiction resides with “the party seeking removal.” Dixon v. Coburg
Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (citing Mulcahey, 29 F.3d at 151). The Fourth
Circuit has not adopted a rule regarding the burden of proof on the removing party for
establishing the amount in controversy. See, e.g., Rota v. Consolidation Coal Co., No. 98-1807,
1999 WL 183873, at *1 n.4 (4th Cir. Apr. 5, 1999) (expressly declining to adopt any particular
standard of proof for determining the amount in controversy) (unpublished opinion). Regardless,
“courts within the District of South Carolina have leaned towards requiring defendants in this
position to show either to a ‘legal certainty’ or at least within a ‘reasonable probability’ that the
amount in controversy has been satisfied.” Brooks v. GAF Materials Corp., 532 F. Supp. 2d 779,
781–82 (D.S.C. 2008) (citing Phillips v. Whirlpool Corp., 351 F. Supp. 2d 458, 461 (D.S.C.

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2005)). The Court, however, finds that it need not resolve this issue because under any standard
of proof, the Court is convinced that Plaintiff’s affidavit reveals that the Court lacks subject
matter jurisdiction.
As a general rule, the amount in controversy in an action that is removed based on
diversity of citizenship should be measured “at both the time of commencement [of the action in
state court] and the time of removal.” Sayers v. Sears, Roebuck & Co., 732 F. Supp. 654, 656
(W.D. Va. 1990). A post-removal event, such as amending a complaint in order to reduce the
amount in controversy below the jurisdictional limit, does not deprive a federal court of diversity
jurisdiction. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938).
Nevertheless, various jurisdictions have found that a post-removal stipulation “that damages will
not exceed the jurisdictional minimum” can be considered as a clarification of an ambiguous
complaint, rather than a post-removal amendment of the plaintiff’s complaint. See Ferguson v.
Wal–Mart Stores, Inc., No. 94–2696, 1994 WL 653479, at *2 (D.S.C. Nov. 15, 1994)
(unpublished) (remanding case when the plaintiff alleged an unspecified amount of damages and
then filed a post-removal stipulation clarifying that the amount of damages sought was below the
jurisdictional amount); Gwyn v. Wal–Mart Stores, Inc., 955 F. Supp. 44, 46 (M.D.N.C. 1997)
(“A post-removal stipulation or amendment of the complaint to allege damages below the
jurisdictional amount will not destroy federal jurisdiction once it has attached. However, when
facing indeterminate claims, . . . the court may consider a stipulation filed by the plaintiff that
the claim does not exceed” the jurisdictional amount. (internal citation and quotation marks
omitted.)); Tommie v. Orkin, Inc., No. 8:09-1225-HMH, 2009 WL 2148101, at *2 (D.S.C. July
15, 2009) (same); compare Woodward v. Newcourt Commercial Fin. Corp., 60 F. Supp. 2d 530,
532–33 (D.S.C. 1999) (distinguishing Ferguson).

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The Court finds that St. Paul is not controlling in this case. Defendant concedes that
“Plaintiff does not specify an amount of damages in her Complaint.” ECF No. 1, ¶ 10. The
Court interprets Plaintiff’s statements in her notarized affidavit as to the amount in controversy
as a stipulation, clarifying that the total amount of damages sought by her Complaint is not more
than $60,000.000. Accordingly, the Court is without subject matter jurisdiction and remands the
case to the state court.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion to Remand is
GRANTED.
AND IT IS SO ORDERED.

July 31, 2013
Charleston, SC

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