McPherson v. Air Evac EMS, Inc.

Filing 26

MEMORANDUM: he Court will GRANT Plaintiff's motion and REMAND this case to state court (Court File No. 5).4 There being no other issues in this case, the Court will DIRECT the Clerk of Court to CLOSE the case. Signed by District Judge Curtis L Collier on 10/27/2014. (BJL, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
JOSEPH MCPHERSON
Plaintiff,
v.
AIR EVAC EMS, INC.,
Defendant.

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No.

1:13-cv-391

Judge Curtis L. Collier

MEMORANDUM
Before the Court is a motion to remand by Plaintiff Joseph McPherson (“Plaintiff”) (Court
File No. 5). Defendant Air Evac EMS, Inc. (“Defendant”) filed a response in opposition (Court File
No. 7) and Plaintiff replied (Court File No. 8). For the following reasons, the Court will GRANT
the motion and REMAND the case (Court File No. 5).

I.

FACTS AND PROCEDURAL HISTORY
Plaintiff filed a complaint against Defendant in McMinn County, Tennessee Circuit Court

for common law retaliatory discharge as well as violations of the Tennessee Public Protection Act
and the Tennessee Equal Pay Remedies and Enforcement Act. Plaintiff, a former employee of
Defendant, a Missouri corporation, is a resident of Hamilton County, Tennessee. Plaintiff’s “Prayers
for Relief” section requests (1) “an injunction requiring Defendant to re-employ Plaintiff to his
former position or an equivalent job with all employment rights and benefits to which he would have
been entitled but for his discharge . . . or, in the alternative, front pay and benefits in lieu of
reinstatement in an amount no more than $74,999, inclusive of all costs, reasonable attorney’s fees,
non-economic damages and compensatory damages and punitive damages;” (2) “judgment for
damages for lost wages and the value of all employment benefits which he has lost from the date of

Defendant’s retaliatory actions;” (3) “additional compensatory damages, including damages for
humiliation and embarrassment, and loss [sic] pay due to his unequal treatment on account of his
gender;” (4) punitive damages; (5) “reasonable attorney fees and the costs of this action;” and (6)
“all other damages which the Court deems proper” (Court File No. 1-1. Complaint, pp. 18-19)
(emphasis added).
Defendant removed the suit to this Court pursuant to 28 U.S.C. § 1441(b), arguing that
Plaintiff’s claim exceeded the $75,000 threshold for diversity jurisdiction under 28 U.S.C. § 1332.
(Court File No. 1). Plaintiff then filed a motion to remand pursuant to 28 U.S.C. § 1447, asserting
that the amount in controversy requirement was not satisfied (Court File No. 5). In addition to
pointing out that his complaint stated that all damages requested were together less under $74,999,
Plaintiff included a stipulation in his remand motion stating he is only requesting that amount.1

II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1441, a defendant may remove from state court to federal court any

civil action that the federal court would have had original jurisdiction over had the case been filed
there originally. The removing party bears the burden of establishing by a preponderance of the
evidence that removal was proper. Her Majesty the Queen v. City of Detroit, 874 F.2d 332, 339 (6th
Cir. 1989). In any case removed from state court, the federal district court shall remand the case if
it appears that the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Because federal

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“Plaintiff stipulates that all his incurred damages, including front pay, benefits, back pay
and benefits in lieu of reinstatement in an amount no more than $74,999, inclusive of all costs,
reasonable attorneys fees, non-economic damages and compensatory and punitive damages” (Court
File No. 6, p. 4). The Court understands that such a stipulation does not prevent an award of an
amount greater than that stated in the stipulation.
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courts are courts of limited jurisdiction, removal statutes are construed strictly and narrowly against
removal. Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 948-49 (6th Cir. 1994); Her Majesty the
Queen, 874 F.2d at 339. If doubt exists that removal was proper, then the case should be remanded
to state court. Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007); Coyne
v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (“All doubts as to the propriety of removal
are resolved in favor of remand.”) (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th
Cir. 1994)).

III.

DISCUSSION
As the removing party, Defendant bears the burden of establishing by a preponderance of the

evidence that removal was proper. Her Majesty the Queen, 874 F.2d at 339; Gafford v. Gen. Elec.
Co., 997 F.3d 150, 157-58 (6th Cir. 1993) (noting that the preponderance standard applies to cases
in which “a defendant seeks to remove a case where the plaintiff has specifically claimed less than
the federal amount in controversy requirement”). The determination of federal jurisdiction in a
diversity case is made as of the time of removal. Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
573 (6th Cir. 2001) (“[W]hen determining whether [a defendant] has met its burden of showing, by
a preponderance, that more than $75,000 is in controversy, we review the damages sought by
Plaintiffs at the time of removal—i.e., the damages sought by Plaintiffs in their original complaint.”)
(alteration in original).
Because a plaintiff is the master of his or her complaint, “[g]enerally, . . . a claim specifically
less than the federal requirement should preclude removal.” Gafford, 997 F.2d at 157; see also
Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405, 409 (6th Cir. 2008) (Generally, if a

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plaintiff “does not desire to try his case in the federal court he may resort to the expedient of suing
for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant
cannot remove.”) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938)).
However, the Court recognizes the concern that “state counterparts to Rule 54(c) of the Federal Rules
of Civil Procedure might enable a plaintiff to claim in his or her complaint an amount lower than the
federal amount-in-controversy requirement in an attempt to defeat federal jurisdiction, while actually
seeking and perhaps obtaining damages far in excess of the federal requirement.” Gafford, 997 F.2d
at 157-58; see Fed. R. Civ. P. 54(c) (providing that with the exception of a default judgment, “[e]very
other final judgment should grant the relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings.”) (emphasis added).
Thus total deference to the amount requested in a plaintiff’s complaint may create the
potential for manipulation in states, such as Tennessee, with Rule 54(c) analogues.2 Accordingly,
“[a] disclaimer in a complaint regarding the amount of recoverable damages does not preclude a
defendant from removing the matter to federal court upon a demonstration that damages are more
likely than not to meet the amount in controversy requirement but it can be sufficient absent adequate
proof from defendant that potential damages actually exceed the jurisdictional threshold.” Smith v.
Nationwide Prop., 505 F.3d 401, 407 (6th Cir. 2007) (internal quotation marks omitted); see also
Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007) (discussing Tenn R. Civ. P.
54.03 and a defendant’s burden of proving the amount in controversy is sufficient for federal
jurisdiction).

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In language similar to the federal rule, Tennessee Rule of Civil Procedure 54.03 provides
that “[e]very final judgment shall grant relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such relief in the party’s pleadings. . . .”
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Plaintiff points out that he included a disclaimer in the Prayers for Relief section of his
complaint stating he was only seeking damages “in an amount no more than $74,999, inclusive of
all costs, reasonable attorney’s fees, non-economic damages and compensatory damages and punitive
damages” (Court File No. 1-1, p. 18). Defendant, on the other hand, points out that in the paragraphs
following the $74,999 demand, Plaintiff requests “damages for lost wages and the value of all
employment benefits,” “additional compensatory damages, including damages for humiliation and
embarrassment, and loss [sic] pay due to his unequal treatment on account of his gender,” punitive
damages, attorney fees and costs, and “all other damages which the Court deems proper.” The Court
concludes that although the complaint could have been better worded and structured it nonetheless
attempts to limit all costs and damages to $74,999. That is, Plaintiff limited “all costs, reasonable
attorney’s fees, non-economic damages and compensatory and punitive damages” to “no more than
$74,999” (id.). Redundant, any additional requests in the complaint for those same types of damages
are not meant to render the damages request open ended. They must be viewed in light of the
$74,999 limiting figure.
There remains, however, the question of whether despite the complaint’s limiting language
Defendant has “demonstrat[ed] that damages are more likely than not to meet the amount in
controversy requirement.” Smith, 505 F.3d at 407. Without elaborating, Defendant points to an
affidavit showing Plaintiff was compensated at an hourly rate of $17.21 and had earned $44, 944.83
in 2012, up to the date of his termination on October 25, 2012 (id. at p.2). Defendant does not
address whether Plaintiff may have mitigated damages, and indeed Plaintiff notes that he has, which
decreases the likelihood that a damages award could surpass $75,000. More importantly, Defendant
does not point to any specific facts or calculations that would indicate it was more likely than not that

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the award would exceed $75,000.3 Simply citing Plaintiff’s hourly wage is insufficient. And it is not
for the Court to calculate possible damages with such little information.

IV.

CONCLUSION
The Court is mindful that removal statutes are to be strictly construed, as “[a]ll doubts as to

the propriety of removal are resolved in favor of remand.” Coyne, 183 F.3d at 493 (citing Alexander,
13 F.3d at 949). Here, given Defendant’s failure to show by a preponderance that removal was
proper—i.e. that Plaintiff’s award would more likely than not surpass $75,000—the Court will
GRANT Plaintiff’s motion and REMAND this case to state court (Court File No. 5).4 There being
no other issues in this case, the Court will DIRECT the Clerk of Court to CLOSE the case.

An Order shall enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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The Court reaches this determination irrespective of Plaintiff’s stipulation. Simply put,
Defendant has failed to demonstrate that the amount in controversy exceeds $75,000.
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In determining that Defendant has not met its burden of showing that, at the time the
complaint was filed, it was more likely than not that damages would surpass $75,000, the Court
does not have to reach whether Plaintiff’s post-removal stipulation also serves to deprive the Court
of jurisdiction. See generally Baldori v. Delta Air Lines, Inc., No. 1:11-CV-102, 2011 WL 1212069,
at *1-3. (W.D. Mich. Mar. 29, 2011) (surveying case law on the effect of post-removal stipulations
as to amount in controversy on defeating diversity jurisdiction).
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