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Montgomery v. Food Giant Supermarkets, Inc.

United States District Court, S.D. Alabama, Southern Division

October 16, 2014



WILLIAM H. STEELE, Chief District Judge.

This matter comes before the Court on the plaintiff's Motion to Remand (doc. 6). The Motion has been briefed and is now ripe for disposition.

I. Background.

On April 24, 2014, plaintiff, Margaret Montgomery, filed this lawsuit against defendant, Food Giant Supermarkets, Inc., d/b/a Piggly Wiggly, in the Circuit Court of Baldwin County, Alabama. The Complaint alleged that Montgomery sustained injuries while an invitee on the premises of defendant's Piggly Wiggly store in Bay Minette, Alabama, when part of the "W" in the storefront sign "broke loose and fell off violently, striking the Plaintiff upon the head, causing severe injuries." (Complaint (doc. 1-1), ¶ 8.) Montgomery attributes this incident to Food Giant's negligence or wantonness, theorizing that defendant either knew or should have known that the Piggly Wiggly sign was structurally defective and/or was not being properly inspected or maintained. In the ad damnum clause of the Complaint, Montgomery demanded unspecified compensatory damages for "Head, Back, Neck and Whole Body Injuries;" "Loss of Enjoyment of Life, both Past and Future;" "Medical Expenses, both Past and Future;" "Mental and Physical Pain and Suffering, both Past and Future;" and "Permanent Disability." ( Id. , ¶ 10.) Plaintiff also demanded punitive damages, again in an unspecified amount. ( Id. , ¶ 11.)

On September 2, 2014, Food Giant filed a Notice of Removal (doc. 1), removing this action to this District Court. To establish federal removal jurisdiction, Food Giant invoked the diversity provisions of 28 U.S.C. § 1332 and alleged that there was complete diversity of citizenship between the parties. With respect to the statute's amount-in-controversy requirement, Food Giant cited a demand letter from plaintiff's counsel to defendant's counsel, dated August 20, 2014, and offering to settle Montgomery's claims for the sum of $100, 000.[1] Defendant characterized the August 20 letter as "other paper" giving rise to a right of removal pursuant to 28 U.S.C. § 1446(b).

Plaintiff now moves to remand this action to Baldwin County Circuit Court on the ground that federal subject matter jurisdiction is lacking because the amount-in-controversy prong of the diversity test is not satisfied here.

II. Analysis.

A. Legal Standard for Motion to Remand.

A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441 and, therefore, must demonstrate the existence of federal jurisdiction. See Friedman v. New York Life Ins. Co. , 410 F.3d 1350, 1353 (11th Cir. 2005) ("[i]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists") (citation omitted); Sammie Bonner Const. Co. v. Western Star Trucks Sales, Inc. , 330 F.3d 1308, 1310 (11th Cir. 2003) ("Because Western Star sought removal to federal court, it bore the burden of proving that Bonner's claims satisfied the minimum amount in controversy requirement."). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all doubts resolved in favor of remand. See University of South Alabama v. American Tobacco Co. , 168 F.3d 405, 411 (11th Cir. 1999) ("explaining that strict construction of removal statutes derives from "significant federalism concerns" raised by removal jurisdiction).

There being no federal question presented in the Complaint, Food Giant's sole theory of removal was diversity of citizenship. Under 28 U.S.C. § 1332(a), federal courts have original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs. See Underwriters at Lloyd's, London v. Osting-Schwinn , 613 F.3d 1079, 1085 (11th Cir. 2010) ("For federal diversity jurisdiction to attach, all parties must be completely diverse... and the amount in controversy must exceed $75, 000.") (citations omitted). "In light of the federalism and separation of powers concerns implicated by diversity jurisdiction, federal courts are obligated to strictly construe the statutory grant of diversity jurisdiction... [and] to scrupulously confine their own jurisdiction to the precise limits which the statute has defined." Morrison v. Allstate Indem. Co. , 228 F.3d 1255, 1268 (11th Cir. 2000) (citations omitted); see also Osting-Schwinn , 613 F.3d at 1086 (similar).

B. The Amount in Controversy.

In her Motion, plaintiff posits that remand of this action is necessary because "the Defendant has failed, by a preponderance of the evidence, to show... that the amount in controversy exceeds $75, 000.00." (Doc. 6, at 1.) Plaintiff has not identified any alleged procedural infirmities in Food Giant's removal; rather, the sole issue presented by the Motion to Remand, and sole issue now before this Court, is whether the removing defendant has satisfied the jurisdictional amount-in-controversy requirement.

As a threshold matter, Montgomery is correct that Food Giant bears the burden of proof as to amount in controversy. It is well settled that "[i]f a plaintiff makes an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the... jurisdictional requirement." Roe v. Michelin North America, Inc. , 613 F.3d 1058, 1061 (11th Cir. 2010) (citations and internal quotation marks omitted). To be sure, a removing defendant "is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744, 754 (11th Cir. 2010). Rather, the defendant may meet its burden by showing either that it is "facially apparent from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, " or that there is "additional evidence demonstrating that removal is proper." Roe , 613 F.3d at 1061 (citations omitted). What the defendant may not do, however, is rely exclusively on "conjecture, speculation, or star gazing" to show the requisite amount in controversy. Pretka , 608 F.3d at 754.

In its Notice of Removal, Food Giant disclaimed any intent to remove under the "facially apparent" prong of Roe , but cited "additional evidence demonstrating that removal was proper, " in the form of the August 20 demand letter and documentation fixing Montgomery's medical bills to date at $69, 237.51. (Doc. 1, ¶¶ 9, 22, 23.) Offers of settlement or demand letters are relevant and may be considered in evaluating the § 1332 amount in controversy for removal purposes; however, their utility varies widely depending on the circumstances. As the Eleventh Circuit has put it, "[w]hile [a] settlement offer, by itself, may not be determinative, it counts for something." Burns v. Windsor Ins. Co. , 31 F.3d 1092, 1097 (11th Cir. 1994). In determining what that "something" is, courts draw distinctions between settlement offers steeped in puffery and posturing at a high level of abstraction, on the one hand, and those yielding particularized information and a reasonable assessment of value, on the other. See, e.g., Jackson v. Select Portfolio Servicing, Inc. , 651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009) ("Settlement offers commonly reflect puffing and posturing, and such a settlement offer is entitled to little weight in measuring the preponderance of the evidence."); Benandi v. Mediacom Southeast, LLC , 2011 WL 5077403, *2 (S.D. Ala. Sept. 30, 2011) ("This Court has held that a settlement demand is actually relevant evidence of the amount in controversy if it includes specific information to reflect a reasonable estimate of the plaintiff's claim."); Diaz v. Big Lots Stores, Inc. , 2010 WL 6793850, *2 (M.D. Fla. Nov. 5, ...

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