United States District Court, M.D. Alabama, Northern Division
DEBRA G. SCOTT, Plaintiff,
FOOD GIANT SUPERMARKETS, INC., Defendant.
MEMORANDUM OPINION AND ORDER 
Russ Walker, United States Magistrate Judge.
matter is before the court on plaintiff's motion to
remand. (Doc. 5). Defendant filed a response to the motion
(Doc. 7). Upon review of the motion and the record, the court
concludes that the motion is due to be granted.
is by now axiomatic that the inferior courts are courts of
limited jurisdiction. They are ‘empowered to hear only
those cases within the judicial power of the United States as
defined by Article III of the Constitution, ' and which
have been entrusted to them by a jurisdictional grant
authorized by Congress.” Griffith v. Wal-Mart
Stores East, L.P., 884 F.Supp.2d 1218, 1221 (N.D. Ala.
2012) (citing Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 409 (11th Cir. 1999)). “[B]ecause removal
jurisdiction raises significant federalism concerns, federal
courts are directed to construe removal statutes
strictly.” Id. (citing Univ. of S.
Ala., 168 F.3d at 411).
removing party has the burden of establishing subject matter
jurisdiction. Id. “[B]ecause the jurisdiction
of federal courts is limited, the Eleventh Circuit Court of
Appeals favors remand of cases that have been removed where
federal jurisdiction is not absolutely clear.”
Id. (quoting Lowe's OK'd Used Cars, Inc.
v. Acceptance Ins. Co., 995 F.Supp. 1388, 1389 (M.D.
Ala. 1998)). “In fact, removal statutes are to be
strictly construed, with all doubts resolved in favor of
remand.” Id. (quoting Lowe's, 995
F.Supp. at 1389).
motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a).” 28 U.S.C. § 1447(c). “If
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” Lowery, 483 F.3d at 1213
filed this action in state court on January 11, 2017. (Doc.
1-4 at 1). On January 17, 2017, defendant was served with the
summons and complaint. (Doc. 1-2 at 1). Plaintiff alleges
that she was injured when she fell on unfinished or uneven
concrete at one of defendant's stores. (Doc. 1-6 at 2).
She brings claims for negligence and wantonness based upon
this incident. (Doc. 1-6 at 2, 4). Plaintiff seeks
“damages of $50, 000 or less against defendants in an
amount to be determined” for the negligence count.
(Doc. 1-6 at 4). She also claims “punitive damages of
$50, 000 or less against defendants in an amount to be
determined” for the wantonness count. (Doc. 1-6 at 6).
filed a notice of removal on February 16, 2017. (Doc. 1).
Defendant contends that all requirements for removal have
been satisfied. (Doc. 1 at 6). In particular, defendant
maintains that the amount in controversy has been satisfied
because plaintiff “asserts two different
causes of action; is faced with two different
burdens of proof; must establish additional conduct for the
second cause of action; and seeks recovery of up to
$50, 000.00 for each of two distinct types of damages.”
(Doc. 1 at 6). In other words, defendant argues that
plaintiff's claims for damages should be aggregated and
maintains that the amount in controversy set forth in the
complaint is $100, 000. (Doc. 1 at 6).
filed a motion to remand on March 14, 2017. (Doc. 5). In it,
she insists that her counts are based on distinct causes of
action “that are mutually exclusive of each
other” so that she “can only recover under one
cause and thus is limited to a maximum amount of $50,
000.” (Doc. 5 at 1). Defendant responds that the claims
should be aggregated because plaintiff has claimed two
different types of damages and could recover under both
counts for a total of up to $100, 000 in damages. (Doc. 7 at
3-4). Defendant contends that, absent a binding stipulation
that plaintiff will neither seek nor accept more than $75,
000, the motion to remand is due to be denied. (Doc. 7 at 6).
plaintiff explicitly seeks an amount of damages that is less
than the jurisdictional amount, the sum demanded in the
initial pleading is not automatically deemed to be the amount
in controversy because the state of Alabama permits the
recovery of damages in excess of the amount demanded.
See 28 U.S.C. §1446(c)(2)(A)(ii) (Providing
that the sum demanded in good faith in the complaint shall be
deemed to be the amount in controversy, except, inter
alia, where the complaint seeks a money judgment but
state practice permits recovery of damages in excess of the
amount demanded.); see also Ala. R. Civ. P. 54(c)
(“[E]very final judgment shall grant the 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.”). Under such circumstances,
defendant must establish the amount in controversy for
diversity jurisdiction by a preponderance of the evidence.
See Harris v. Aghababaei, 81 F.Supp.3d 1278, 1280-81
(M.D. Ala. 2015) (discussing the effect of the Federal Courts
Jurisdiction and Venue Clarification Act of 2011, Pub. L. No.
112-63, § 103, 125 Stat. 758, 762 (2011) on Eleventh
Circuit precedent concerning the burden of proof).
Defendant's argument that it has met this standard is
based upon the aggregation of plaintiff's claims.
However, “[w]hile the claims of one plaintiff against
one defendant are generally aggregated, under Alabama law a
plaintiff cannot receive a ‘double recovery' for
what is essentially one viable cause of action.”
Daniel v. Nationpoint, No. 2:07-CV-640, 2007 WL
4533121, *2 (M.D. Ala. Dec. 19, 2007). Whether or not
plaintiff's claims should be aggregated is determined by
whether the claims constitute “standalone claim[s] [or]
a theory of recovery.” See Andrews v. Medical
Excess, LLC, 863 F.Supp.2d 1137, 1140 (M.D. Ala. 2012)
(discussing the difference between differing legal theories
of recovery and separate claims) (citing Holmes v.
Boehringer Ingelheim Pharm., Inc., 158 F.Supp.2d 866
(N.D. Ill. 2001)). One court articulated this distinction as
follows, in the context of the case then pending before it:
Both claims rely on the same facts and allege a failure to
warn; all that differs between the two claims are the
allegations of the nature of the defendants' duties. A
right of recovery is distinct from a theory of liability; a
plaintiff may have only one right of recovery though she
‘advances a variety of legal theories to support that
Holmes, 158 F.Supp. at 868 (deciding that negligence
and strict liability are “merely different bases for a