United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's motion to
remand (Doc. 73) and motion to file a second amended
complaint (Doc. 72); Defendant's Response (Doc. 77);
Plaintiff's motion for an extension to file a Reply (Doc.
79) and the Reply (Doc. 80), Defendant's Supplement (Doc.
81), and Plaintiff's motion to strike the Supplement
(Doc. 84); Plaintiff's motion to rule on the remand
motion before the other motions (Doc. 78); and the May 31,
case stems from Plaintiff Kathryn F. Fuller (Fuller)'s
June 11, 2014 shopping trip to a Winn Dixie grocery store in
Mobile, Alabama. Fuller selected her groceries, checked out
and exited the store. As she was leaving, one of the grocery
bags she was carrying allegedly failed, and a glass spaghetti
sauce jar shattered, severely slicing her left foot. Fuller
had to undergo surgery, and alleges she experiences continued
problems and permanent limitations.
7, 2016 Fuller initiated this action in the Circuit Court of
Mobile County, Alabama (CV 16-901162). (Doc. 1-1). Fuller
alleged negligence/wantonness, premises liability and
negligent, reckless and wanton
hiring/supervision/training. (Doc. 1-1). On July 11, 2016,
defendants removed the case on the basis of federal subject
matter diversity jurisdiction, setting out the diversity of
citizenship among the parties but acknowledging that
Fuller's damages were indeterminate. (Doc.1).
Nevertheless, Defendants asserted that based on Fuller's
allegations, injuries and damages, the jurisdictional
threshold was satisfied. This Court conducted a sua
sponte screening of the removal, after which it
concluded that “it is more likely than not that the
amount in controversy in this case exceeded the $75, 000
minimum at the time the Notice…was filed.” (Doc.
12 at 3). In March 2017, WD moved for summary judgment. (Doc.
59). On May 10, 2017, Fuller moved for leave to file a second
amended complaint and to remand. (Docs. 72-73).
forth in Poore v. American-Amicable Life Ins. Co. of
Texas, 218 F.3d 1287, 1290-1291 (11th Cir.
2000) (footnotes and citations omitted), overruled in
part on other grounds by Alvarez v. Uniroyal Tire Co.,
508 F.3d 639, 641 (11th Cir. 2007):
…every Circuit that has addressed this issue has held
that the proper inquiry is still whether the court had
jurisdiction at the time of removal.[ ] For example, the
Sixth Circuit has held that “the timing question is
dispositive because, despite the change in the wording of
§ 1447(c) ... courts still read that section as
authorizing remand when a district court determines that
jurisdiction had been lacking at the time of removal, rather
than later....”….We join our sister Circuits and
conclude the amendments to § 1447(c) did not alter the
fact that, in this case, the district court must determine
whether it had subject matter jurisdiction at the time of
removal. [ ] That is, events occurring after removal which
may reduce the damages recoverable below the amount in
controversy requirement do not oust the district court's
per Davison v. Lefever, 2013 WL 4012654, *2 (S.D.
Ala. Aug. 5, 2013): “In determining its subject-matter
jurisdiction, this Court is not concerned with the
plaintiffs' present or future intentions; the critical
point in time is, instead, when the case was removed.”
Thus, post-removal developments may be considered
and weighed if and when they shed light on
the amount in controversy at the time of removal.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
772-773 (11thCir. 2010); Sierminski v.
Transouth Fin. Corp., 216 F.3d 945, 949 (11th
Cir. 2000). Specifically, post-removal changes in or
alterations to the amount in controversy are prohibited
(Land Clearing Co., LLC v. Navistar, Inc., 2012 WL
206171, *3 (S.D. Ala. Jan. 24, 2012)), but
“post-removal clarifications of the
amount…in controversy at the moment of
removal” are not (Jackson v. Select
Portfolio Servicing, Inc., 651 F.Supp.2d 1279, 1282
(S.D. Ala. 2009) (emphasis added)).
properly assess the amount in controversy, we must begin with
the amount Fuller alleged as damages in her state court
complaint at the moment of removal:
WHEREFORE, PREMISES CONSIDERED, Fuller demands
judgment…for general and compensatory damages that the
court may determine, together with interest from the date of
the injury plus the costs of this action. Further, Fuller
requests that the jury…. award punitive damages
reflect the enormity of the Defendants' wrongful acts
and/or omissions and which will effectively prevent other
similar wrongful acts/omissions.
(Doc. 1-1 at 4-6; Doc. 1-2 (amended state court complaint) at
4-7)). Based on this prayer with no damages amount, WD
removed this action on diversity grounds, asserting that
while Fuller's damages are indeterminate, “a fair
reading of the Complaint reveals Fuller is seeking in excess
of $75, 000[.]” (Doc. 1 at 3). Screening WD's
removal, this Court ordered supplemental briefing on the
amount in controversy, as it “harbored doubts about
whether the $75, 000 amount-in-controversy is
satisfied.” (Doc. 5; Doc. 12 at 2). In response, Fuller
stated that “her position at this time in this
litigation is that her claims exceed the value or sum of $75,
000 and that the amount in controversy requirement…has
been met.” (Doc. 7 at 6). Fuller stressed that her
position is rooted in the severity of her injuries. (Doc. 7).
From this, the Court ruled that Fuller's response was a
clarification (versus an alteration) of the
jurisdictional facts relating to the amount in controversy.
(Doc. 12 at 3). The Court found the “jurisdictional
concerns…dispelled, ” and ruled “it is
more likely than not that the amount in
controversy…exceeded the $75, 000 minimum at the
time…removal was filed.” (Id.)
10 months later, on May 10, 2017, Fuller moves for leave to
amend her complaint to change her damages to $54, 999.99
WHEREFORE, PREMISES CONSIDERED, Fuller demands
judgment….The total recovery sought by Fuller for full
satisfaction of all claims shall not exceed the sum of $54,
999.99. Fuller also moves to remand asserting that while at
the time of removal she was seeking more than $75, 000, she
“is now not seeking nor will she accept a sum greater
than $75, 000 for full satisfaction of all her claims against
all Defendants.” (Doc. 73 at 2). In support, Fuller: 1)
submits an Affidavit stating she will neither seek nor accept
over $75, 000 for all claims (Doc. 73-1 at 1 (Aff. Fuller));
and 2) explains she recently settled with former defendant
Advanced Polybag, Inc. for $20, 000 such that ...