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