United States District Court, N.D. Alabama, Southern Division
DAVID A. LEE, Plaintiff,
CASH CENTRAL OF ALABAMA, LLC, et al, Defendants.
MEMORANDUM OPINION AND ORDER OF REMAND
G. CORNELIUS U.S. MAGISTRATE JUDGE
pending is the motion to remand filed by the plaintiff, David
A. Lee. (Doc. 9). The defendants, Cash Central of
Alabama, LLC, Community Choice Financial Inc., and Direct
Financial Solutions, LLC, have opposed the motion, which is
now ripe for adjudication. (Doc. 17; see Doc. 18).
For the reasons explained below, the motion is due to be
granted, and this matter is due to be remanded to state
February 16, 2018, Lee filed the initial complaint in this
matter in Shelby County Circuit Court, asserting claims under
Alabama common law and naming as defendants Cash Central,
Community Choice Financial, and numerous fictitious parties.
(Doc. 1-1 at 9-17). Lee's complaint asserts an unknown
party stole his identity, obtained loans from the defendants,
and subsequently defaulted. Lee's claims arise from the
allegation the defendants reported to credit rating agencies
that he defaulted on the fraudulent loans. (Id.). On
February 19, 2018, Lee filed an amended complaint adding
additional state law claims. (Id. at 33-35). On
February 23, 2018, Lee filed a second amended complaint
adding Direct Financial Solutions as a defendant.
(Id. at 98-99). On February 26, 2018, Lee filed a
third amended complaint correctly identifying Community
Choice Financial. (Id. at 104-05).
defendants were formally served with process on March 15 and
16, 2018, after which they filed a timely motion to dismiss.
(Doc. 1-2 at 108, 114, 117, 121-32). After a hearing, the
state court denied the motion to dismiss on May 16, 2018.
(Doc. 1-3 at 46). That same day, Lee filed a fourth amended
complaint asserting additional claims. (Id. 52-57).
Accordingly, the operative complaint asserts claims against
the above-captioned defendants and fictitious parties for
negligence, wantonness, misrepresentation, declaratory
relief, reckless training and supervision, invasion of
privacy, negligent and wanton approval of a fraudulent loan
application, negligent and reckless training, supervision,
and monitoring of the loan approval process, malice, and
willfulness. (See id.). No iteration of the
complaint specified the amount of damages Lee sought. Rather,
Lee alleged the defendants' conduct caused him to have a
lower credit score, difficulty refinancing his primary
residence, delays in financing a lake house, a higher
interest rate on a mortgage loan on his primary residence,
and mental anguish. (E.g. Doc. 1-1 at 12).
21, 2018, counsel for the defendants received a letter from
Lee, dated May 17, 2018. (Doc. 1-4; see Doc. 1 at
11). The letter, in which Lee opined on the strength of his
case and the difficulties the defendants would face in
litigating the claims, invited the defendants to consider
early resolution of the case. (Doc. 1-4). The letter did not
include a specific settlement demand but did state Lee would
not accept a low-ball offer. (Id. at 2). On May 31,
2018, the defendants removed to this court based on federal
diversity jurisdiction. (Doc. 1). As to the amount in
controversy, the defendants rely entirely on Lee's May
17, 2018 letter to establish the jurisdictional threshold.
(Id. at 11-12).
court action may be removed if "the district courts of
the United States have original jurisdiction." 28 U.S.C.
§ 1441(a). Pursuant to 28 U.S.C. § 1332(a), the
federal district courts shall have original jurisdiction of
all civil actions between citizens of different states where
the amount in controversy exceeds $75, 000. The requirement
of complete diversity of citizenship appears to be satisfied
here; Lee is an Alabama citizen (See Doc. 1 at 9),
and the named defendants are citizens of Ohio. While the
operative complaint asserts claims against fictitious
parties, the citizenship of these parties is disregarded when
determining the existence of complete diversity. 28 U.S.C.
issue in this case is whether Lee's May 17, 2018 letter
is sufficient to show the amount in controversy exceeds the
jurisdictional threshold. Where a plaintiffs complaint does
not include an ad damnum clause, the removing
defendants must prove-by a preponderance of the evidence-the
amount in controversy exceeds $75, 000. Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir.1996),
abrogated on other grounds, Cohen v. Office Depot,
204 F.3d 1069 (11th Cir. 2000). The defendants concede the
initial pleadings in this case do not satisfy the amount in
controversy requirement under 28 U.S.C. § 1332(a).
(See Doc. 1 at 14-15). However, a notice of removal
may be filed within thirty days after receipt by the
defendant of "an amended pleading, order, or other paper
from which it may first be ascertained that the case is one
which has become removable." 28 U.S.C. §
1446(b)(3). Here, the defendants contend Lee's May 17,
2018 letter constitutes "other paper" showing the
amount in controversy exceeds $75, 000. (Doc. 1 at 11-12).
defendants rely on several statements in the letter to
support removal: (1) the lawsuit "could result in a
multi-million dollar verdict in Shelby County;" (2)
settlement would not be cheap; and (3) the cost of settlement
would increase as litigation progressed. (Doc. 1 at 11,
15-16). As the defendants would have it, the letter revealed
Lee's belief that the amount in controversy is
"several million dollars." (Id. at 16).
order for "other paper" to establish removability,
the paper "must contain an unambiguous statement that
clearly establishes federal jurisdiction." Lowery v.
Ala. Power Co., 483 F.3d 1184, 1213 n.63 (11th Cir.
2007); see also Griffith v. Wal-Mart Stores E.,
L.P., 884 F.Supp.2d 1218, 1224 (N.D. Ala. 2012).
Settlement demands or offers can be evidence that the amount
in controversy exceeds $75, 000. See Seckel v. Travelers
Home & Marine Ins. Co., No. 12-4163-KOB, 2013 WL
360421, at *1-2 (N.D. Ala. Jan. 29, 2013). "While [a]
settlement offer, by itself, may not be determinative, it
counts for something." Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1097 (11th Cir. 1994). However, the
weight given to a settlement offer "depends on the
circumstances." Taylor v. Piggly Wiggly of Bay
Minette, Ala., No. 12-0320, 2012 WL 3555576, at *1-2
(S.D. Ala. Aug. 16, 2012). Indeed, courts within this circuit
have found removing defendants failed to establish the amount
in controversy even where plaintiffs have specifically
asserted settlement demands exceeding $75, 000. Brooks v.
Sears, Roebuck & Co., No. 18- 554, 2018 WL 3761045,
at *2-4 (M.D. Fla. July 2, 2018), report and
recommendation adopted, 2018 WL 3545421 (M.D. Fla. July
24, 2018) (finding amount in controversy not satisfied,
notwithstanding the plaintiffs post-suit settlement demand of
$135, 000); Jackson v. Select Portfolio Serv., Inc.,
651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009) ($155, 000
settlement demand, without information to support the figure,
was insufficient to support removal).
determining the weight due settlement demands have focused on
whether the demand reflects a reasonable assessment of the
value of the plaintiffs claim or mere puffing and posturing.
"[S]ettlement offers that provide 'specific
information to support the plaintiffs claim for damages'
suggest the plaintiff is 'offering a reasonable
assessment of the value of his claim' and are entitled to
more weight." Taylor, 2012 WL 3555576, at *1-2
(quoting Golden Apple Mgmt. Co. v. Geac Comput.,
Inc., 990 F.Supp. 1364, 1368 (M.D. Ala. 1998)
(alterations incorporated) (settlement demand of $225, 000
was persuasive because it was accompanied by "specific
information about hard, past damages" that plaintiffs
medical expenses were $70, 000); Hardesty v. State Farm
Mut. Auto. Ins. Co., No. 09-735-, 2009 WL 1423957, at
*2-3 (M.D. Fla. May 18, 2009) (settlement demand of $100, 000
policy limits satisfied jurisdictional threshold where it was
accompanied by assessment of plaintiffs damages showing $8,
425.00 in past medical expenses, $107, 370.00 in future
medical expenses, as well as $75, 000.00 for bodily injury,
pain and suffering, disability, physical impairment, mental
anguish, inconvenience, and loss of enjoyment of life).
settlement demands amounting to mere puffing or posturing do
not reflect a reasonable assessment of the value of the case
and thus, fail to satisfy the defendant's burden.
Seckel, 2013 WL 360421, at *l-2 (letter from
plaintiff stating "I have no doubt I can win a 6 figure
judgment" constituted "puffing and posturing"
which did not establish the amount in controversy);
Brooks, 2018 WL 3761045, at *2-4 ($135, 000
settlement demand did not satisfy amount in controversy where
defendant did not present any information regarding the
nature or severity of plaintiffs injuries); Jackson,
651 F.Supp.2d at 1281 (unsupported $155, 000 settlement
demand insufficient to support removal); see also Clarke
v. Home Depot, Inc., No. 07-80097, 2007 WL 9701763, at
*1 (S.D. Fla. Mar. 12, 2007) (letter from plaintiffs counsel
acknowledging the exact amount of damages had not been
evaluated but stating "preliminary estimates"
revealed damages would exceed $75, 000 insufficient to show
amount in controversy exceeded jurisdictional threshold).
Lee's May 17, 2018 letter does not make a specific
settlement demand. Accordingly, the letter does not
constitute Lee's unambiguous assessment of the value of
his case. Perhaps more importantly, the letter is devoid of
specific information regarding the extent of Lee's