United States District Court, S.D. Alabama, Southern Division
JOEL PAUL LAROUSSE, individually and as next friend of minor JDL, et al., Plaintiffs,
EDWARD LEE HAMMOND, JR., et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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).
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.
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
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). 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…”).
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)). 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.
Amount in Controversy
Third Amended Complaint, the operative complaint both
currently and at the time of removal,  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.
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
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 ...