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Rachel v. PNC Bank, N.A.

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

April 11, 2017

PNC BANK, NA, et al ., Defendants.



         This matter is before the Court on a sua sponte review of the Court's jurisdiction (Doc. 40) and the Defendants' responses to the Court's show cause order (Docs. 49-51).

         I. Background

         This litigation stems from Plaintiff's May 26, 2016 Complaint in the Circuit Court of Mobile County, Alabama (Case No. 02-CV-2016-901097.00) against Defendant PNC Bank (PNC), Safeguard Properties, Inc. (Safeguard) and Exquisite Property Preservation, Inc. (Exquisite) for negligence/recklessness, trespass, conversion and outrage. Plaintiff's case is rooted in post-foreclosure actions taken by Defendants allegedly against the wrong property, as the Defendants confused his home address with that of another.

         Specifically, Plaintiff alleges that in May 2015, Defendants came onto his property and mowed the grass and changed the locks to his mobile home trailer (the grass had also been mowed by Defendants on a prior occasion). In response, Plaintiff complained to Defendant Safeguard (reported the trespass), provided the correct address for the foreclosed home (not his) and filed a complaint with the Mobile County Sheriff's Department. On May 7, 2016, Defendants again mowed his yard. In response, he complained to Safeguard and again provided the other home's address. Some time later that day - while Plaintiff was away --Defendants broke into his home and removed almost all of its contents (personal property, dog, lawn equipment, motorcycle, shed lock, other items, etc.). Plaintiff was devastated. As relief, Plaintiff demands “damages exceeding $50, 000” (Docs. 1-1, 13) - thus seeking least $50, 000 but potentially less than $75, 000 (i.e., unspecified damages).

         On July 5, 2016, Defendants PNC (and Safeguard and Exquisite via consent (Doc. 1 at 5 at ¶21 and Doc. 1-2) filed a Notice of Removal (Notice) per 28 U.S.C. § 1446(b)(2)(B) basing removal on subject matter diversity jurisdiction per 28 U.S.C. § 1332, asserting it is “facially apparent” from the Complaint that the amount in controversy exceeds the jurisdictional requirement of $75, 000 and there is complete diversity of citizenship. (Doc. 1). As support, Defendants reference Plaintiff's request for compensatory damages from an alleged trespass to real property and conversion of all personal property contained therein, as well as mental anguish/emotional distress and punitive damages. (Doc. 1 at 4-5). However, the Notice does not provide insight as to the amount in controversy. The Notice does not include estimates for the damages Plaintiff claims (compensatory, mental anguish/emotional distress, punitive), nor does it provide valuations of the personal property items alleged to have been converted or destroyed. The only specific sum before the Court is the $5, 000 which Plaintiff alleges is his life savings that Defendants took from his home. At most, Defendants merely list categories of damages to assert the amount in controversy is satisfied. This is insufficient. As it is unclear whether Defendants satisfied their removal burden, the Court ordered Defendants to show cause as to why this case should not be remanded. (Doc. 40).

         Defendants PNC, Safeguard, Exquisite, and Jayme and Chris Ryczywot (recently added), filed responses to the Court's order asserting that the amount in controversy is satisfied. In so doing, Defendants rely heavily on Plaintiff's October 26, 2016 responses to Defendants Safeguard and Exquisite's joint First Interrogatories - post-removal discovery. (Doc. 51-1 at 2-11). In same, Plaintiff identifies $25, 745 in destroyed/lost personal property and 14 “priceless or of extreme importance and cannot be replaced[]” items. (Id. at 8-11).

         II. Relevant Law

         There can be no doubt but that “[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). See also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003) (“removal statutes should be construed narrowly, with doubts resolved against removal[]”); University of South Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (internal citation omitted) (“[b]ecause removal jurisdiction raises significant federalism concerns....all doubts about jurisdiction should be resolved in favor of remand to state court[]”); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted) (“[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute...which is not to be expanded by judicial decree[]”). Additionally, the removing defendant must bear “the burden of demonstrating federal jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 at n. 4 (11th Cir. 1998). See also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (“[T]he party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction[]”). In short, “[i]t is...presumed that a cause lies outside this limited jurisdiction…and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” Kokkonen, 511 U.S. at 377 (internal citations omitted). Thus, as here, where jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332, the removing party bears the burden of establishing complete diversity of citizenship -- that: 1) the plaintiff is diverse from all the defendants, Triggs, 154 F.3d at 1287, and 2) by a preponderance of the evidence, the amount in controversy more likely than not exceeds the $75, 000 jurisdictional requirement. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11thCir. 1996) (“[W]e hold where a plaintiff has made 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 $[75], 000 jurisdictional requirement[]”) abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). See also Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (same); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (same); Collinsworth v. Big Dog Treestand, Inc., 2016 WL 3620775, *1 (S.D. Ala. Jun. 29, 2016) (same).

         Moreover, because Defendant PNC removed this case under Section 1446(b)(1) (within 30 days of its receipt of service of the state court complaint), the Eleventh Circuit's decision in Roe, 613 F.3d at 1062 guides the undersigned's analysis (characterizing that case as a “§ 1446(b) first-paragraph case[] in which the plaintiff does not make a specific damages demand[]” --which is now considered a Section 1446(b)(1) case).[1] In Roe, the Eleventh Circuit stated: “If a defendant alleges that removability is apparent from the face of the complaint, the district court must evaluate whether the complaint itself satisfies the defendant's jurisdictional burden. In making this determination, the district court is not bound by the plaintiff's representations regarding its claim, nor must it assume that the plaintiff is in the best position to evaluate the amount of damages sought.” Roe, 613 F.3d at 1061. Indeed, Eleventh Circuit precedent permits district courts to make “reasonable deductions, reasonable inferences, or other reasonable extrapolations” from the pleadings to determine whether it is facially apparent that a case is removable. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). Put simply, a district court need not “suspend reality or shelve common sense in determining whether the face of a complaint...establishes the jurisdictional amount.” Id. at 770 (quoting Roe v. Michelin North America, Inc., 637 F.Supp.2d 995, 999 (M.D. Ala. 2009)). See also Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). “[C]ourts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements.” Roe, 613 F.3d at 1062.

         The Eleventh Circuit further stated that the approach announced in Roe “is consistent with those of other circuits[, ]” id. at 1062, specifically citing, inter alia, two Fifth Circuit cases - - Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999) and Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000). Roe, 613 F.3d at 1062-1063. Luckett and Gebbia both demonstrate that “the Fifth Circuit has repeatedly acknowledged the power of district court judges to appraise the worth of plaintiffs' claims based on the nature of the allegations stated in their complaints.” Roe, 613 F.3d at 1063. See Luckett, 171 F.3d at 298; Gebbia, 233 F.3d at 833. Cf. Purdiman v. Organon Pharm. USA, Inc., 2008 WL 686996, *2 (N.D.Ga. Mar. 12, 2008) (pre-Roe) (citing both Luckett and Gebbia, and holding that “[a]lthough the Complaint excludes any reference to the amount of damages Plaintiff has sustained…after full review and consideration, the Court concludes that is it apparent from the factual allegations in the Complaint that the amount in controversy in this action exceeds $75, 000[]”). Thus, at least in the context of a Section 1446(b)(2)(B) removal case in which a plaintiff does not make a specific damages demand -- such as this one -- a district court may employ “its judicial experience or common sense….” Roe, 613 F.3d at 1063.

         III. Discussion

         Defendant PNC contends either that: 1) the amount in controversy is “facially apparent” on the Complaint; or 2) Pretka post-removal evidence establishes the amount in controversy. Defendants Safeguard and Exquisite contend it is “facially apparent” the amount is met because Plaintiff's Complaint “clearly place[s] in controversy” more than $75, 000 as he seeks compensatory damages for trespass, conversion, outrage, wantonness, mental anguish/emotional distress and his claim for punitive damages “is, of course, included in the determination[.]” (Doc. 50). All Defendants highlight Plaintiff's failure to challenge removal (Safeguard and Exquisite assert he has “tacitly agreed” to the amount in controversy) and his refusal to stipulate to seeking less than $75, 000 (as impliedly agreeing to the amount).

         Defendant PNC asserts that Plaintiff placed at least $50, 000 at issue in his Complaint such that it “need only show that an additional $25, 000 is more likely than not in controversy in order to meet their burden and satisfy the jurisdictional threshold.” (Doc. 51 at 5). As support, Defendant PNC references the $25, 745.00 itemization from Plaintiff's post-removal discovery responses and to that, adds the $50, 000 allegation from Plaintiff's Complaint to arrive at an amount in excess of the jurisdictional requirement. However, Plaintiff's allegation of “exceeding $50, 000” in his Complaint appears to already include the property set forth in his $25, 745.00 itemization and his damages request. (Doc. 1-1 at 7-10).

         A. Failure to Stipulate

         Defendants emphasize the fact that Plaintiff has not stipulated to the amount in controversy. A plaintiff's refusal to stipulate is not determinative of same, has little probative value and does not extinguish the removing Defendants' burden on that point. See, e.g., Williams, 269 F.3d at 1320 (“[t]here are several reasons why a plaintiff would not so stipulate, and a refusal to stipulate standing alone does not satisfy...[defendant's]...burden of proof on the jurisdictional issue[]”). See also e.g., Collinsworth, 2016 WL 3620775, *5 (same); Wilson v. Chester Bross. Const. Co., 2011 WL 1380052, *14 at n. 11 (S.D. Ala. Apr. 12, 2011) (same); Mareno v. Wal-Mart Stores, Inc., 2006 WL 2716053, *2 (S.D. Ala. Sept. 22, 2006) (same).

         B. Failure to challenge removal

         Defendants emphasize Plaintiff's failure to challenge removal. Plaintiff's failure in this regard should by no means be unilaterally equated with a “tacit agreement” to remove his case to federal court (as Defendants assert). The absence of a challenge by Plaintiff is irrelevant. This Court is under a continuing obligation to sua sponte inquire into its subject matter jurisdiction. Federal courts are courts of limited jurisdiction such that this Court is “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). Additionally, there remains “a presumption against the exercise of federal jurisdiction, such that all uncertainties…are to be resolved in favor of remand.” Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (emphasis added). See also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003) (“removal statutes should be construed narrowly, with doubts resolved against removal[]”); American Tobacco Co., 168 F.3d at 411 (same).

         C. “Facially Apparent” from the Complaint

         As noted supra, Defendants removed this case under Section 1446(b)(1) such that Pretka governs and applies rather than Lowery (which dealt with “second paragraph” § 1446(b) removal). Defendants contend that an amount in controversy in excess of $75, 000 is “facially apparent” based on the claims in Plaintiff's Complaint and because he seeks mental anguish and punitive damages. There are no monetary valuations of Plaintiff's claims in his Complaint apart from $5, 000 in life savings, which he included in the award that he seeks of “exceeding $50, 000.”

         1. Negligence/Recklessness, Trespass, Conversion & Outrage

         Plaintiff alleges that Defendants trespassed onto his property with malice by breaking into his home and removing all of his personal property (including his dog) and converting same by either destroying or keeping his belongings (only later recovering his dog). As support that the amount in controversy is met, Defendant PNC relies on Smith v. Family Dollar Stores, Inc., 2014 WL 4793445, *6-7 (N.D. Ala. Sept. 25, 2014) referencing “plaintiff's specific allegations of intentional, aggressive, and malicious trespass coupled with the relief requested” in that case; and Roe, 637 F.Supp.2d at 999 noting “it is not speculative to conclude from the egregious conduct alleged” in that case that the amount in controversy exceeds $75, 000. (Doc. 51 at 6). Citing the Complaint, Defendant PNC emphasizes Plaintiff's “specific factual allegations” that Defendants incorrectly targeted his home despite him notifying them they had the wrong home; Defendants broke into his home and removed almost the entirety of its contents which could not be recovered; and Plaintiff was “devastated” and no longer wishes to live in his home. (Id. at 6-7).

         Turning to Smith, 2014 WL 4793445, that case involved the construction of a Family Dollar store and trespass, nuisance, negligence/wantonness and combined and concurring negligence/wantonness claims from noises, vibrations and water drainage impacting plaintiffs' properties. The Court applied its “judicial experience and common sense” to plaintiffs' factual allegations and claims, to conclude the amount in controversy more likely than not exceeded the jurisdictional minimum. Id. at 3. The Court emphasized plaintiffs' exposure to noises and vibrations during three (3) months of construction, continuous water drainage on to plaintiffs' properties, conscious, deliberate and/or reckless disregard for plaintiffs' possessory/ownership rights, and trespass which was wanton and/or willful with malice, insult, contumely and reckless, insulting, oppressive, aggravated and/or done with gross negligence - all of which interfered with plaintiffs' use/enjoyment of their properties, damaged/devalued their properties, adversely affected their quality of life, exposed them to an unhealthy environment and caused them mental anguish, pain and suffering and anxiety. Id. at 3. The court concluded that, “it ‘will not permit plaintiff[s] to disclaim the seriousness of defendants' alleged misconduct and the extent of monetary relief sought in an attempt to avoid federal jurisdiction[]'….Plaintiffs have alleged the “defendants intentionally, aggressively, maliciously and wantonly trespassed on and flooded their properties for over a year and a half.” Id. at 5.

         Smith is distinguishable. In this case, the alleged actions by Defendants took place over a few days' time, not an extended period. Defendants are alleged to have trespassed onto Plaintiff's real property and converted his personal property. There are no claims that Defendants exposed Plaintiff to an unhealthy environment or engaged in actions which damaged or devalued his home. Plaintiff does not allege that his real property (mobile home or land) was impacted. Thus, the undersigned cannot liken the circumstances of Smith with the singular (albeit troubling) event at Plaintiff's home.

         As for Defendants' reliance on Roe, 637 F.Supp.2d 995, such was a wrongful death case involving product liability claims stemming from a Ford Explorer tire blow out. In Roe, plaintiff's suing under Alabama's wrongful death act prohibited the recovery of compensatory damages, allowing only for punitives. Id. at 997. The Court assessed factors specific to an Alabama Wrongful Death Act case to value plaintiff's claims for purposes of deciding whether defendant met its burden of proof with regard to the amount in controversy. Id. at 998. See also Roe v. Michelin ...

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