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Larousse v. Hammond

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

April 10, 2018

JOEL PAUL LAROUSSE, individually and as next friend of minor JDL, et al., Plaintiffs,
EDWARD LEE HAMMOND, JR., et al., Defendants.



         This action is before the Court on the motion to remand under 28 U.S.C. § 1447(c) (Doc. 4) filed by the Plaintiffs. The Court has referred the motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (2/23/2018 electronic referral). Defendants Derwin Daniels and AAA Aluminum Enclosures, LLC (collectively, “the Removing Defendants”) have timely filed a response (Doc. 22) in opposition to the motion. No reply to the response was filed, the deadline to do so has passed, and the motion to remand is now under submission. (See Doc. 9).

         Upon consideration, and pursuant to § 636(b)(1)(B)-(C) and Rule 72(b)(1), the undersigned will recommend that the Plaintiffs' motion to remand (Doc. 4) be DENIED by the Court.

         I. Background

         The Plaintiffs commenced this case on October 5, 2016, by filing a complaint in the Circuit Court of Mobile County, Alabama (see Doc. 1-2 at 1 - 4), alleging causes of action arising from an automobile accident involving the Plaintiffs and Defendant Edward Lee Hammond, Jr. The Plaintiffs amended their complaint several times over the course of the state court proceedings (see Id. at 5 - 54). On January 12, 2018, the Plaintiffs filed their Second Amended Complaint, which joined the Removing Defendants as parties to the state court action. (See Id. at 19 - 38). On February 7, 2018, the Plaintiffs filed their Third Amended Complaint. (See Id. at 40 - 54). On February 20, 2018, the Removing Defendants removed the case to this Court under 28 U.S.C. §§ 1441(a). (See Doc. 1). The Plaintiffs filed and served the present motion to remand (Doc. 4) two days later. Later that same day, the Removing Defendants filed an amended notice of removal (Doc. 6) for the stated purpose of “set[ting] forth more clearly the citizenship of the limited liability company Defendant and confirm[ing] that complete diversity exists.”[1]

         II. Analysis

         Where, as here, a case is removed from state court, “[t]he burden of establishing subject matter jurisdiction falls on the party invoking removal.” Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir. 1999).[2] Accord, e.g., City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (“The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction.”). The Removing Defendants allege diversity of citizenship under 28 U.S.C. § 1332(a) as the sole basis for this Court's original jurisdiction. See 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal…containing a short and plain statement of the grounds for removal…”).

         “Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Thus, a “ ‘party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties.' ” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1225 (11th Cir. 2017) (quoting Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam)). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519 F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading diversity of citizenship is upon the party invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974)).[3] Diversity jurisdiction also requires that “the matter in controversy exceed[] the sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a); Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 & n.4 (11th Cir. 2010). The Plaintiffs argue that the Removing Defendants have failed both to show that the amount in controversy meets the jurisdictional threshold, and to establish the citizenships of the natural person parties.

         a. Amount in Controversy

         The Third Amended Complaint, the operative complaint both currently and at the time of removal, [4] alleges ten causes of action under state law - five for various categories of negligence, and five for various categories of wantonness - none of which demands a sum certain. Instead, each count concludes with a demand for various categories of damages, with the negligence counts demanding general and/or compensatory damages, and the wantonness counts demanding general and/or punitive damages. “Where, as here, the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “What counts is the amount in controversy at the time of removal. It is less a prediction of how much the plaintiffs are ultimately likely to recover, than it is an estimate of how much will be put at issue during the litigation; in other words, the amount is not discounted by the chance that the plaintiffs will lose on the merits.” S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir. 2014) (citation and quotation omitted). “When the complaint does not claim a specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement. If the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed.” Williams, 269 F.3d at 1319.

         In their notice of removal, the Removing Defendants first argue:

Based on the allegations of the Third Amended Complaint, the requisite amount in controversy is satisfied as the Plaintiffs allege they are “permanently injured”, have experienced physical pain, mental anguish, and will experience future medical, hospital, and other medical expenses. Additionally, Joel Larousse is making a claim for lost wages, future lost wages, and loss of use and value of his vehicle. The Plaintiffs have not entered any stipulations limiting any award that may be made, and have not provided any affidavits waiving any recovery above $75, 000, 00.

(Doc. 6 at 3, ¶ 12). As the Plaintiffs correctly point out, however, the Eleventh Circuit has found that a similar record, without more, “failed to show that the amount in controversy more likely than not exceeds $75, 000.” See Williams, 269 F.3d at 1318-20 (“Williams filed a complaint in the State Court of Fulton County, Georgia, alleging that she tripped over a curb while entering one of Best Buy's retail stores and sustained injuries as a result of Best Buy's negligence. In addition to permanent physical and mental injuries, the complaint alleges that Williams incurred substantial medical expenses, suffered lost wages, and experienced a diminished earning capacity. The complaint then alleges that Williams will continue to experience each of these losses for an indefinite time into the future. For these injuries, the complaint seeks general damages, special damages, and punitive damages in unspecified amounts…In this case, it is not facially apparent from Williams' complaint that the amount in controversy exceeds $75, 000. We therefore look to Best Buy's notice of removal. Although the notice of removal clearly asserts that the jurisdictional requirement is satisfied, the only fact alleged in support of that assertion is that Williams refuses to stipulate that her claims do not exceed $75, 000. There are several reasons why a plaintiff would not so stipulate, and a refusal to stipulate standing alone does not satisfy Best Buy's burden of proof on the jurisdictional issue. Thus, the pleadings are inconclusive as to the amount in controversy.”).[5]

         Unlike the defendant in Williams, the Removing Defendants do present more. Specifically, they cite to discovery responses served by Plaintiff Joel Paul Larousse (hereinafter, “Joel”) (Doc. 6-1 at 529 - 552), which they assert demonstrate that, “[t]hrough July 2016, Plaintiff Joel Larousse has had over $20, 760.05 in general damages including medical bills, the lost value of his vehicle, and the expense of his rental ...

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