United States District Court, M.D. Alabama, Eastern Division
OPINION AND ORDER
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff's motion to
remand (Doc. 4), which is opposed by defendant Ram Partners,
LLC. This case was initially assigned to the undersigned as
presiding judge, and the parties subsequently consented in
writing to the exercise of final dispositive jurisdiction by
the Magistrate Judge pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73(a). (Docs. 10, 11). The
motion to remand has been briefed and taken under submission
without oral argument. For the reasons stated herein, the
plaintiff's motion to remand is due to be denied without
Background and facts
initiated this suit on July 26, 2017 by filing a complaint in
the Circuit Court for Chambers County, Alabama. Doc. 1-1 at
4. Plaintiff was a lessee and resident of defendant Ram
Partners, doing business as The Apartments at the Venue.
Id. at 5. Plaintiff's complaint alleges
that, as a result of Ram Partners' negligent and willful
conduct, she suffered injuries resulting in physical and
mental suffering, past and future medical expenses, and lost
wages. Id. at 5-8. Plaintiff also seeks punitive
damages. Id. Plaintiff does not specify in her
complaint the amount of damages she intends to claim and does
not otherwise make a demand. Id. at 4-8.
plaintiff filed her complaint, plaintiff also served summons
on defendant. Id. at 11-13. Defendant answered the
complaint on September 8, 2017. Id. at 14-24. On
September 29, 2017, defendant served interrogatories and a
request for production on plaintiffs. Id. at 26-43.
On November 20, 2017, plaintiff responded to defendant's
interrogatories and written discovery request. Id.
at 44. On December 13, 2017, defendant's counsel
transmitted correspondence to plaintiff's counsel asking
for clarification of plaintiff's responses to
interrogatories and requesting a settlement demand. Doc. 1-2.
On December 18, 2017, plaintiff's counsel responded to
defendant's counsel, stating that plaintiff's income
loss was $24, 396.18 and her out-of-pocket medical expense
was $20, 324.14, and demanding a settlement in the amount of
$250, 000 to resolve plaintiff's claim in its entirety.
Doc. 1-3. Defendant filed its notice of removal, which is
premised on diversity jurisdiction, on January 17, 2018. Doc.
The parties' positions
notice of removal, defendant argues that while the parties
are diverse, this case was not originally removable because
it was not clear that the amount in controversy was in excess
of $75, 000. Doc. 1 at 1-5. According to defendant, the case
became removable on December 18, 2017 - the date on which
plaintiff's counsel made a settlement demand of $250,
000. Id. at 8. Defendant argues that plaintiff's
settlement demand constituted an “other paper, ”
as contemplated by 28 U.S.C. § 1446(b), and that receipt
of this “other paper” triggered the 30-day time
period for removal. Id. at 7-8. Defendant attached
the settlement demand to its notice of removal. Doc. 1-3.
motion to remand does not dispute the amount in controversy
or the timeliness of the defendant's notice of removal.
Plaintiff argues that the case is due to be remanded because
the complaint does not establish diversity of citizenship.
Doc. 4 at 2. Plaintiff argues that defendant has members who
are citizens of Alabama. Doc. 4 at 3.
argues in response to plaintiff's motion to remand that
it is a limited liability company with four individual human
members who are all domiciled in the state of Georgia. Doc.
8. Defendant further contends that plaintiff's settlement
demand of $250, 000 clearly establishes that the amount in
controversy exceeds $75, 000, and that the removal was
timely. Id. Defendant attaches an affidavit from
Martha Logan, a member of Ram Partners, to its response to
plaintiff's motion to remand, which states that each of
Ram Partners' four members are domiciled in the state of
Georgia. Doc. 8-1.
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. Griffith, 884 F.Supp.2d at 1221.
“[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).
district court must “review the propriety of removal on
the basis of the removing documents.” Lowery v.
Ala. Power Co., 483 F.3d 1184, 1211 (11th Cir. 2007).
Removing documents include “all documents
before the court when it reviews the propriety of
removal” that are relevant to making such assessments.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
773 n.28 (11th Cir. 2010)(citing Sierminski v. Transouth
Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000)(“We
align ourselves with our sister circuits in adopting a more
flexible approach, allowing the district court when necessary
to consider post-removal evidence in assessing removal
jurisdiction.”)). See also Travaglio v. Am. Express
Co., 735 F.3d 1266, 1269 (11th Cir. 2013)(“we need
not vacate a decision on the merits if the evidence submitted
during the course of the proceedings cures any jurisdictional
pleading deficiency by convincing us of the parties'
citizenship”)(considering evidence establishing
diversity of citizenship); Williams v. Best Buy Co.,
269 F.3d 1316 (11th Cir. 2001)(“Where the pleadings are
inadequate, we may review the record to find evidence that
diversity jurisdiction exists.”). “If that
evidence is insufficient to establish that removal was proper
or that jurisdiction was present, neither the defendants nor
the court may speculate in an attempt to make up for the
notice's failings.” Lowery, 483 F.3d at
the court is not limited only to the evidence on record, and
“a defendant may add post-removal evidence of
jurisdiction to the record when that evidence is otherwise
admissible.” Pretka, 608 F.3d at 773
(considering evidence establishing the amount in controversy
requirement and citing Lowery, 483 F.3d at
1218-21)(emphasis in original). Further, so long as the
removal is procedurally proper, “[d]efendants may
introduce their own affidavits, declarations, or other
documentation.” Id. at 755 (citing Miedema
v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006);
Williams, 269 F.3d at 1319; Sierminski, 216
F.3d at 949; Fowler v. Safeco Ins. Co. of Am., 915
F.2d 616, 617 (11th Cir. 1990)). While the Eleventh Circuit
has cautioned that “post-removal discovery disrupts the
careful assignment of burdens” and that such discovery
may “impermissibly lighten the defendant's burden
of establishing jurisdiction, Lowery, 483 F.3d at
1217-18, where there is incomplete development of the record
as to whether jurisdiction exists, the court has repeatedly
directed district courts to make further factual findings.
See Rolling Greens MHP, L.P. v. Comcast SCH Holdings,
L.L.C., 374 F.3d 1020, 1023 (11th Cir. 2004)(remanding
to the district court “for the limited purpose of
determining whether diversity jurisdiction exists”);
Leonard v. Enter. Rent a Car, 279 F.3d 967. 972
(11th Cir. 2002)(“[w]here, however, it is unclear
whether the jurisdictional amount has been satisfied, due to
an incomplete development of the record by the district
court, the proper course of action is to remand the case for
factual findings on the actual amount in
controversy.”); Williams, 269 F.3d at 1321
(“where the notice of removal asserts that
jurisdictional amount and the plaintiff does not challenge
that assertion in the district court, we will remand the case
to the district court for factual findings on the amount in
controversy if the amount in controversy cannot clearly be
determined by a review of the record”). Accord
Lowery, 483 F.3d at 1215 n.69 (distinguishing its
refusal to allow post-removal discovery from the
circumstances in Williams). Any jurisdictional facts
supporting removal “must be judged at the time of the
removal, and any post-petition affidavits are allowable only
if relevant to that period of time.” Id. at
949 (quoting Allen v. R&H Oil Co., 63 F.3d 1326,
1335 (5th Cir. 1995)).
is governed by 28 U.S.C. § 1446, which
“contemplates two ways that a case may be removed based
on diversity jurisdiction.” Moore v. Wal-Mart
Stores East, LP, 2015 WL 5813164 *4 (M.D. Ala.
2015)(report and recommendation adopted). “The first
way (formerly referred to as ‘first paragraph
removals') involves civil cases where the jurisdictional
grounds for removal are apparent on the face of the initial
pleadings.” Id. (quoting Griffith,
884 F.Supp.2d at 1223). See also 28 U.S.C.
§1446(b)(1)(2012). “The second way (formerly
referred to as ‘second paragraph removals')
contemplates removal where the jurisdictional grounds later
become apparent through the defendant's receipt of
‘an amended pleading, motion, order, or other paper
from which it may first be ascertained that the case is one
which is or has become removable.'” Id.
(quoting Griffith 844 F.Supp.2d at 1223). See
also 28 U.S.C. § 1446(b)(3)(2012). “Demand
letters, settlement offers, and even emails estimating
damages may constitute ‘other paper.'”
Lee v. Lilly Trucking of Virginia, Inc.,
2012 WL 960989 *2 (M.D. Ala. 2012); see 28 U.S.C.
§ 1446(c)(3)(2012) (“If the case stated by the
initial pleading is not removable solely because the amount
in controversy does not exceed the amount specified in
1332(a), information relating to the amount in controversy in
the record of the State proceeding, or in responses to
discovery, shall be treated as an ‘other paper'
under subsection (b)(3).”). For a second paragraph
removal to be timely, it must be filed “within thirty
days after receipt by the defendant . . .from which it may be
first ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3)(2012). As
explained by the court in Lowery:
Under the second paragraph, a case becomes removable when
three conditions are present: there must be (1) “an
amended pleading motion, order or other paper, ” which
(2) the defendant must have received from the plaintiff (or
from the court, if the document is an order), and from which
(3) the ...