United States District Court, M.D. Alabama, Northern Division
AARON L. THORN, Plaintiff,
WAFFLE HOUSE, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
April 13, 2017, defendants Waffle House, Incorporated
(“Waffle House”), Marquetta Johnson
(“Johnson”), and Neil Greenwood
(“Greenwood”) removed this case from the Circuit
Court of Montgomery County, Alabama. In his complaint,
plaintiff Aaron Thorn (“Thorn”) accuses the
defendants of negligence, wantonness, false arrest, false
imprisonment, malicious prosecution, defamation and slander
arising out of his arrest on March 1, 2015. The notice of
removal asserts that Thorn is a citizen of New York, and
defendant Waffle House is a corporation incorporated in
Georgia with its principal place of business in Georgia.
Defendants Johnson and Greenwood are citizens of Alabama.
Although Aaron seeks compensatory and punitive damages, his
complaint does not specify an amount of damages. The
defendants assert that because they received a demand letter
seeking one million dollars, “it is apparent that the
amount in controversy is met.” (Doc. # 1 at 6, ¶
25). On that basis, pursuant to 28 U.S.C. § 1441 and
§ 1446, the defendants removed the case to this court.
See 28 U.S.C. § 1332.
15, 2017, Thorn filed a motion to remand (doc. # 14). The
court directed the defendants to file a response to the
motion, and they have done so. Pursuant to 28 U.S.C. §
636(c)(1) and M.D. Ala. LR 73.1, the parties have consented
to a United States Magistrate Judge conducting all
proceedings in this case and ordering the entry of final
judgment. Upon consideration of the motion to remand, the
briefs filed in support of and in opposition to the motion to
remand, and for the reasons which follow, the court concludes
that the motion to remand is due to be GRANTED, and this case
remanded to the Circuit Court of Montgomery County, Alabama.
STANDARD OF REVIEW
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994). This court is “‘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.” Univ.
of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th
Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994)).
civil case filed in state court may be removed by the
defendant to federal court if the case could have been
brought originally in federal court.” Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.
1996) (citing 28 U.S.C. § 1441(a)), abrogated on
other grounds by Cohen v. Office Depot, Inc.,
204 F.3d 1069 (11th Cir. 2000). A defendant may remove to
federal court any civil action over which the court would
have original jurisdiction. 28 U.S.C. § 1441(a). This
court has jurisdiction over actions involving citizens of
different states provided that all plaintiffs are diverse
from all defendants, see Strawbridge v. Curtiss, 7
U.S. 267 (1806), and the amount in controversy exceeds $75,
000. 28 U.S.C. § 1332(b). “When a case is removed
to federal court, a removing defendant's burden to
establish federal jurisdiction is “a heavy one.”
Pacheco de Perez v. AT&T Co., 139 F.3d 1368,
1380 (11th Cir. 1998). Any questions or doubts are to be
resolved in favor of returning the matter to state court on a
properly submitted motion to remand. Burns, 31 F.3d
defendants removed this case solely on the basis of the
court's diversity jurisdiction. To establish diversity
jurisdiction, the removing parties must not only demonstrate
that the properly-joined parties are completely diverse, but,
where the amount in controversy is not evident from the face
of the complaint, the amount in controversy exceeds the $75,
000 jurisdictional minimum set by 28 U.S.C. § 1332.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
752 (11th Cir.2010).
on the plaintiff's settlement letter dated March 14,
2017, the defendants argue that the demand letter is an
“other paper” sufficient to establish that the
amount in controversy exceeds $75, 000 and it reopens the
window to timely remove the case to this court. See
28 U.S.C. § 1446(b)(2)(C). The defendants also assert
that the removal is timely as to defendants Johnson and
Greenwood because they have not yet been served with the
complaint. See 28 U.S.C. § 1446(b)(2)(B). The
court pretermits discussion of whether the notice of removal
is timely under 28 U.S.C. § 1446(b)(2)(B) or §
1446(b)(2)(C) because the issue before the court is not one
of timeliness. Rather the question is whether the defendants
have satisfied their burden of establishing, by a
preponderance of the evidence, that the amount in controversy
exceeds $75, 000.00. The court concludes that the defendants
have failed to demonstrate by a preponderance of the evidence
that the amount in controversy is met.
is little dispute that “[a] settlement offer can
constitute an ‘other paper' within the meaning of
28 U.S.C. § 1446(b).” Lowery v. Ala. Power
Co., 483 F.3d 1184, 1213 n. 62 (11th Cir. 2007). And
“ [w]hile [a] settlement offer, by itself, may not be
determinative, it counts for something.”
Burns, 31 F.3d at 1097.
What it counts for, however, depends on the circumstances.
Settlement offers commonly reflect puffing and posturing, and
such a settlement offer is entitled to little weight in
measuring the preponderance of the evidence. On the other
hand, settlement offers that provide “specific
information . . . to support [the plaintiff's] claim for
damages” suggest the plaintiff is “offering a
reasonable assessment of the value of [his] claim” and
are entitled to more weight. Golden Apple Management Co.
v. Geac Computers, Inc., 990 F.Supp.1364, 1368 (M.D.
Jackson v. Select Portfolio Servicing, Inc., 651
F.Supp.2d 1279, 1281 (S.D. Ala. 2009) (footnotes omitted).
See also Ryals v. Wal-Mart Stores East, L.P., 2016
WL 7173884, *4 (M.D. Ala. Sept. 29, 2016) (Case No:
2:16cv580-MHT-PWG); Foshee v. Cleavenger, 2014 WL
6978276, *4 (M.D. Ala. Dec. 4, 2014) (Civil Action No.
2:14cv965-SRW); Dean v. Sears, Roebuck and Co., 2014
WL 900723, * 3 (S. D. Ala. Mar. 7, 2014 (No. CA 13-00487-C);
Intihar v. Citizens Information Assocs., LLC, 2014
WL 68550, *1 (M.D. Fla. Jan. 8, 2014) (No.
defendants rely exclusively on the plaintiff's settlement
letter to establish the amount in controversy at $1, 000,
000.00. Their reliance is misplaced. ...