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Silverstein v. Weather Shield Mfg., Inc.

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

July 25, 2019

JERRY SILVERSTEIN, Plaintiff,
v.
WEATHER SHIELD MFG., INC., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the Motion to Remand (Doc. 8) filed by Plaintiff Jerry Silverstein (“Silverstein”), to which the Defendants Weather Shield Mfg., Inc. (“Weather Shield”) has filed a response in opposition (Doc. 10) and Silverstein filed a reply. (Doc. 11). This matter is now ripe for consideration and has been referred to the undersigned Magistrate Judge for entry of a report and recommendation under 28 U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil Procedure 72(b). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that Silverstein's Motion to Remand (Doc. 8) be GRANTED.

         I. Procedural History

         On March 14, 2019, Silverstein filed a complaint in the Circuit Court of Mobile County, Alabama, alleging breach of settlement agreement, fraud in the inducement, and unjust enrichment against Weather Shield. (Doc. 1). On April 16, 2019, Weather Shield filed a notice of removal pursuant to 28 U.S.C. § 1332, 1441 and 1446. Weather Shield contends that removal is proper because the Complaint seeks damages relating to the “alleged material breach of a settlement entered in response to a lawsuit that was filed in this Federal Court.” (Doc. 1). Weather Shield maintains that removal is proper under § 1441(a), because this Court has original jurisdiction[1]. In addition, Weather Shield asserts that this Court has original jurisdiction under 28 U.S.C. § 1332(a), which provides that the district courts have original jurisdiction of civil actions between citizens of different states where, the amount in controversy exceeds $75, 000, exclusive of interest and costs.

         Previously, Silverstein filed suit against Weather Shield in this Court in January 2017, styled Jerry Silverstein v. Weather Shield Mfg., Inc., United States District Court, Southern District of Alabama, Southern Division, Case Number 1:17-cv-00012. Prior to trial, the parties reached a settlement (“settlement agreement”). (Doc. 1-1 at 18). Pursuant to the terms of the agreement, Weather Shield agreed to pay $61, 900.00 and replace all of the windows and window sashes at Silverstein's home. (Doc. 1-1 at 20). Weather Shield paid the amount and commenced work on the house. After some work was completed, Weather Shield claimed that eight windows on the house were considered “fixed doors” and ceased repair. Silverstein alleges, in sum, that Weather Shield failed to honor that settlement agreement.

         II. Applicable Legal Standards

         After a plaintiff files a civil action in a state court over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant may remove the action to federal court, provided that no defendant is a citizen of the state in which action was brought. 28 U.S.C.A §1441(a), See also Caterpillar Inc. v. Lewis, 117 S.Ct. 467 (1196). Upon removal, the removing party “bears the burden of proving that federal jurisdiction exists.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “Just as a plaintiff bringing an original action is bound to assert jurisdictional bases under Rule 8(a), a removing defendant must also allege the factual bases for federal jurisdiction in its notice of removal under 28 U.S.C. A §1446(a).” Lowery v. Alabama Power Co., 483 F.3d 1184, 1216-17 (11th Cir. 2207). Therefore, Weather Shield bears “the burden of demonstrating federal jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287(11th Cir. 1998).

         “The party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “If a plaintiff makes ‘an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the…jurisdictional requirement.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061(11th Cir. 2010), See also Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). “Courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements.” Id. at 1062.

         28 U.S.C. § 1446 (c)(2)(B) provides that “removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by preponderance of the evidence, that the amount in controversy exceeds the amount specified in Section 1332(a).” “Similarly, the amount-in-controversy allegation of a defendant seeking federal-court adjudication should be accepted when not contested by the plaintiff or questioned by the court. In the event that the plaintiff does contest the defendant's allegations, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” 28 U.C.S.A. §1446(c)(2)(B), Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 549 (2014). “In sum, as specified in §1446(a), a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Id. at 554.

         III. Analysis

         Prior to the instant suit and pursuant to a settlement agreement negotiated by the parties, Weather Shield was to replace all window sashes with a lifetime warranty at Silverstein's home. Silverstein now argues that Weather Shield breached the “lifetime warranty in the installation of the windows and doors in his home.” (Doc. 8 at 1). Specifically, in February 2019, after repair and replacement of the windows ceased, Silverstein disagreed with the classification of his eight windows being considered as “fixed doors” by Weather Shield.

         Silverstein did not make a demand in excess of $75, 000.00 in the suit filed in the Circuit Court of Mobile County. Silverstein notes that in the Mobile County Circuit Court the “filing fee for claims less than $50, 000.00 is $260.00” and he “paid this filing fee indicating that the claim would not exceed $50, 000.00” (Doc. 8 at 2-3).

         Weather Shield maintains that the claim will, in fact, be more than $75, 000.00. Weather Shield argues that Silverstein does not present evidence “that the Complaint only seeks recovery as to the eight (8) stationary French doors not covered by the contract.” (Doc. 10 at 3). Rather, Weather Shield calculates the total value of the contract relying upon the previously paid amount of $61, 900.00, (the amount agreed upon within the settlement agreement from the previous case entitled Silverstein v. Weather Shield Mfg., Inc., 1:17-cv-00012-KD-N); replacement of all window sashes to the home, which is valued at $38, 414.00; and the cost to install the windows at $72, 000.00 to exceed the federal amount requirement.

         Weather Shield's argument that the previously paid amount in its calculations should be included to determine the jurisdictional amount is misplaced. The previously paid amount is not mentioned in Silverstein's complaint, nor is there any dispute that this sum has been paid in full. ...


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