Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foshee v. Cleavenger

United States District Court, M.D. Alabama, Northern Division

December 4, 2014

HUGH FOSHEE and JANET FOSHEE, Plaintiffs,
v.
GARY L. CLEAVENGER, et al., Defendants.

MEMORANDUM OPINION and ORDER

SUSAN RUSS WALKER, Chief Magistrate Judge

The present dispute arises out of a motor vehicle collision that occurred in Pike County, Alabama, on January 1, 2013. On August 6, 2014, plaintiffs filed a lawsuit in the Circuit Court of Pike County, asserting negligence and loss of consortium claims against defendant Gary L. Cleavenger - the driver of a Ford Expedition that allegedly rear-ended the 2006 Chrysler Sebring that plaintiff Hugh Foshee was driving - and defendant Forsgren, Inc. ("Forsgren").[1] (Doc. #1-1). Plaintiffs seek judgment awarding them damages in an unspecified amount to compensate plaintiff Hugh Foshee "for his personal injuries, pain and suffering, mental anguish, costs, and any other damages [the court] determines proper" and "in an amount necessary to compensate [both plaintiffs] for their loss of consortium[.]" ( Id., ad damnum clauses). Plaintiffs allege that their vehicle "was declared a total loss" and that Hugh Foshee "has incurred expenses for medical attention that he received" as a result of the accident. ( Id., ¶ 9). The state court Clerk served both defendants by certified mail on August 18, 2014. (Doc. #1-2, pp. 10-15).

On September 15, 2014, the defendants removed the action to this court. (Doc. #1). In their initial notice of removal, they assert that the plaintiffs are residents and citizens of the State of Alabama, that Cleavenger is a resident and citizen of the State of Arkansas, and that Forsgren is an Arkansas corporation and a citizen of the State of Arkansas. ( Id., ¶¶ 6-9). They further assert that "[a]lthough a sum certain is not demanded in the Plaintiffs' Complaint, it is the position of the Defendants that the amount in controversy is in excess of $75, 000.00, exclusive of interest and costs[, ]" that "there is complete diversity of citizenship between the parties[, ]" and that this court "has original jurisdiction, pursuant to 28 U.S.C. § 1332." ( Id., ¶¶ 12-15). This action is presently before the court on plaintiffs' motion to remand, filed September 25, 2014. Upon consideration of the parties' arguments, the pleadings, and the evidence of record, the court concludes that the motion to remand is due to be denied.

DISCUSSION

With limited exception, defendants may remove to federal district court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction[.]" 28 U.S.C. § 1441(a). The jurisdictional statute on which defendants relied in removing the present lawsuit provides that district courts "have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States[.]" Id., § 1332(a)(1). Plaintiffs maintain that there was "no valid basis for removal" of this action and that it is due to be remanded to state court because "subject matter jurisdiction is patently lacking[.]'" (Doc. #8-1, pp. 8-9).

Complete Diversity of Citizenship

Plaintiffs first contend that their complaint "shows on its face that there is not complete diversity of citizenship in this case because the Foshees are Alabama residents and the incident made the basis of the Complaint occurred in Pike County, Alabama." (Doc. #9-1, pp. 2-3). This argument reflects a fundamental misunderstanding of the concept of complete diversity of citizenship. The location of the incident giving rise to the claim plays no part in the analysis of whether complete diversity of citizenship exists, and the diversity jurisdiction statute does not require diversity of citizenship among the plaintiffs. See 28 U.S.C. § 1332(a)(1)("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between ... citizens of different States[.]")(emphasis added); id., at § 1332(c)(1)(defining citizenship of corporations for purposes of the diversity and removal statutes); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)("Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant."). Plaintiffs do not challenge the defendants' allegations regarding their status as citizens of the State of Arkansas, nor do they suggest that either plaintiff shares a state of citizenship with either of the defendants. Plaintiffs' argument that complete diversity of citizenship is lacking is without merit.

Amount In Controversy

Plaintiffs next contend that they are entitled to remand because the defendants have failed to satisfy their burden of establishing, by a preponderance of the evidence, that the amount in controversy is sufficient to sustain diversity jurisdiction. As to the amount in controversy, defendants alleged upon removal that, "Although a sum certain is not demanded in the Plaintiffs' Complaint, it is the position of the Defendants that the amount in controversy is in excess of $75, 000.00, exclusive of interest and costs." (Notice of Removal, Doc. #1, ¶ 12). Plaintiffs maintain that - by "rely[ing] upon a conclusory allegation in their notice of removal that the jurisdictional amount is satisfied" - defendants have failed to meet their burden as to the amount in controversy. (Doc. #8-1, p. 3).

In response to plaintiffs' motion to remand, defendants filed an "Amended Notice of Removal" in which they modify their amount-in-controversy allegation to read as follows:

Although a sum certain is not demanded in the Plaintiffs' Complaint, the amount in controversy is in excess of $75, 000.00, exclusive of interest and costs. In a letter to Defendants' insurance carrier, Plaintiffs' counsel detailed the various injuries and damages the Plaintiffs allegedly sustained as a result of this accident. The letter further provides a breakdown of the Plaintiffs' claimed damages, which include $35, 594.82 in medical expenses; $38, 160.00 in future medication costs; and $4, 000.00 in lost wages. See correspondence from Plaintiffs' counsel, attached as "Exhibit D." While these claimed damages, which total $77, 754.82, undisputedly exceed the $75, 000.00 threshold of § 1332(a), the Plaintiff's demanded of the Defendants $224, 000.00 due to "the permanency of Mr. Foshee's injuries." Plaintiffs' counsel makes clear in his letter that the Plaintiffs' demand of $224, 000.00 is based on counsel's "objective and realistic" evaluation of the Plaintiffs' "claims and injuries." Id . Thus, the Plaintiffs clearly intend to seek from the Defendants an amount much greater than $75, 000.00.

(Doc. #10, Amended Notice of Removal, ¶ 12; see also Doc. #10-4, Exhibit D to Amended Notice of Removal, 10/9/2013 letter from plaintiffs' counsel to United Fire Group). Defendants have also filed a copy of plaintiffs' demand letter to United Fire Group as an attachment to their response in opposition to plaintiff's motion to remand. (Doc. #9-1).

Plaintiffs do not contend that defendants may not amend a notice of removal, nor do they argue that - in assessing the amount that was in controversy at the time of removal - this court may not consider evidence filed after removal.[2] Nor have plaintiffs lodged an objection to the authenticity or admissibility of the evidence defendants have filed in this case. Instead, plaintiffs maintain that the pre-suit demand letter is not sufficient to satisfy defendants' burden of establishing that the requisite amount is in controversy, apparently for two reasons. First, they contend that it "does not constitute sufficient "other paper" from which the defendant could ascertain the case was remov[]able[.]'" (Doc. #11, p. 2)(ostensibly quoting Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992)[3]). They further suggest that the pre-suit demand letter that their attorney sent to defendants' insurer is not probative of the actual amount in controversy. (Id. at pp. 1-2)(citing Mark v. Wood Haulers, Inc., 2009 WL 5218030 (S.D. Ala. Dec. 31, 2009) and Jackson v. Select Portfolio Servicing, Inc., 2009 WL 2385084 (S.D. Ala. Jul. 31, 2009)). Plaintiffs have also filed a copy of United Fire Group's response to their demand letter, in which the insurer offers only $7, 500.00 to resolve plaintiffs' claim, "[i]n light of the clear contributory negligence on the part of Mr. Foshee[.]" (Doc. #11-1).[4]

The Fifth Circuit's Chapman decision has no bearing the issue before this court. The Fifth Circuit addressed the timeliness of the removal petition before it, which was filed more than thirty days after the defendant was served with the state court complaint. See Chapman, 969 F.2d at 160 (defendant was served on July 10, 1990, and filed a notice of removal on August 27, 1990). In reaching its decision, the court rejected the plaintiff's contention that, because the plaintiff had advised the defendant in a pre-suit letter that he had incurred medical expenses in the amount of $67, 196.48, the defendant was required to remove the case within thirty days of service of the complaint - which sought damages in an unspecified amount. The plaintiff argued that service of the complaint triggered the thirty-day removal period because the defendant knew or should have known from plaintiff's pre-suit correspondence that the amount in controversy exceeded the jurisdictional threshold, which was then $50, 000. Chapman, 969 F.2d at 161-62. The Fifth Circuit concluded that "for the purposes of the first paragraph of § 1446(b), the thirty day time period in which a defendant must remove a case starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." Id., 969 F.2d at 163. The court rejected the plaintiff's related contention that the medical bills and demand letter that he had provided to the defendant before commencement of the lawsuit constituted "other paper' for purposes of the second paragraph of § 1446(b)" such that the thirty-day removal period described in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.