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Smith v. Family Dollar Stores, Inc.

United States District Court, N.D. Alabama, Western Division

September 25, 2014




This cause is before the court on plaintiffs Mark Smith, Lee Coleman, Eric Wheeler, and Willie Danner's (collectively "plaintiffs") Motion to Remand. (Doc. 5).[1] Upon review of the record, the submissions of the parties, argument of counsel, and the relevant law, the court finds that plaintiffs' motion is due to be denied.

I. Background

Plaintiffs filed this action against defendants Family Dollar Stores, Inc., ("Family Dollar"), MetroGroup Development ("MetroGroup"), and Foresite Group, Inc. ("Foresite") (collectively "defendants") in the Circuit Court for Sumter County, Alabama. In February 2012, defendants began construction of a Family Dollar store in Sumter County. (Doc. 1-1, ¶ 11). During construction defendants developed and implemented a moat as a drainage system for the store. ( Id. ¶ 17). The construction of the store created various noises and vibrations that affected plaintiffs' property. ( Id. ¶¶ 13-15). The moat/drainage system also caused continuous water drainage onto property owned by Smith and lawfully occupied by Coleman, property owned by Wheeler, and property lawfully occupied by Danner. ( Id. ¶¶ 1-4; 18-21).

The plaintiffs filed suit against defendants on December 23, 2013. The Complaint sets forth claims for trespass, nuisance, negligence/wantonness, and combined and concurring negligence/wantonness. ( Id. ¶¶ 31-55). As a result of these actions, plaintiffs seek compensatory damages for interference with the use and enjoyment of plaintiffs' property, "personal injury, mental and emotional anguish, suffering and distress, anxiety, and for such future damages as are appropriate;" punitive damages; exemplary/enhanced damages; and additional further relief. ( Id. p. 14).

Foresite removed this action on January 29, 2014, alleging diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1).[2] Although the Complaint contains no ad damnum clause, the Notice of Removal asserts that the amount in controversy exceeds the jurisdictional threshold of $75, 000. ( Id. ¶¶ 15-26.) Plaintiff filed the instant Motion to Remand and Brief in Support contending that defendants have not sufficiently established that the amount in controversy exceeds $75, 000. (Doc. 5). This matter has been fully briefed and is ripe for adjudication.

II. Discussion

Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, 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." Accordingly, "when an action is removed from state court, the district court first must determine whether it has original jurisdiction over the plaintiff's claims." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1556-57 (11th Cir. 1989)).

28 U.S.C. § 1446(b) makes removal proper in two instances. In the first instance, which is delineated in section 1446(b)(1) (formerly referred to as "first paragraph removal"), removal is based upon the plaintiff's initial pleading.[3] Under section 1446(b)(1), the notice of removal must be filed "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Cases may also be removed under section 1446(b)(3) (formerly referred to as "second paragraph removal"). A case not initially removable under section 1446(b)(1) may be removed under section 1446(b)(3) if the defendant receives "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." In the present case, defendants rely on the plaintiffs' initial pleading and have removed the action under section 1446(b)(1).

In its notice of removal, Foresite argues that this court has subject matter jurisdiction under 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1332, a federal district court may hear a civil action that is between citizens of different states and where the matter in controversy exceeds $75, 000, exclusive of interest and costs. See Wachovia Bank v. Schmidt, 546 U.S. 303, 306 (2006). The parties do not dispute that plaintiffs and defendants are citizens of different states. (Doc. 1, ¶ 13). Rather, plaintiffs contend that defendants have failed to establish that the amount in controversy exceeds $75, 000.

"Where, as here, plaintiff[s] ha[ve] not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement." Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Although the removing defendants may, and sometimes must, submit evidence demonstrating the propriety of removal, see, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir. 2010), in some cases, "it may be facially apparent' from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when the complaint does not claim a specific amount of damages.'" Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quoting Pretka, 608 F.3d at 754).

A. Face of the Complaint

In Roe the Eleventh Circuit summarized how district courts assess the face of the Complaint:

If a defendant alleges that removability is apparent from the face of the complaint, the district court must evaluate whether the complaint itself satisfies ...

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