United States District Court, S.D. Alabama, Southern Division
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. 10) filed by the Plaintiff, Sam
Krikorian. The assigned District Judge 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); (9/5/2019 electronic reference). In
accordance with the Court's briefing schedule
(see Doc. 11), the Defendant, Ford Motor Company
(“Ford”), timely filed a response (Doc. 12) in
opposition to the motion, and Krikorian timely filed a reply
(Doc. 13) to the response. The motion is now under submission
(see Doc. 11).
consideration, the undersigned will, pursuant to §
636(b)(1)(B)-(C) and Rule 72(b)(1), recommend that the Court
deny Krikorian's motion to remand (Doc. 10) for the
reasons explained herein.
commenced this case on July 26, 2019, by filing a five-count
complaint in the Circuit Court of Baldwin County, Alabama
(see Doc. 1 at 14 - 74), alleging causes of action
against Ford for fraud (Count One), fraud in the inducement
(Count Two), breaches of express warranty (Count Three) and
implied warranty (Count Four), and violations of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et
seq. (Count Five), arising from his purchase of an
allegedly defective automobile manufactured by Ford. Ford
removed Krikorian's case to this Court under 28 U.S.C.
§ 1441(a) on August 27, 2019. See (Doc. 1).
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.”). Ford alleges 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). Ford has sufficiently alleged, and Krikorian does not
dispute, that the parties are diverse. However,
Krikorian does assert that Ford cannot sufficiently prove
that the requisite minimum amount in controversy is
as here, “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 v. Best
Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “
‘[R]emoval ... is proper on the basis of an amount in
controversy asserted' by the defendant ‘if the
district court finds, by the preponderance of the evidence,
that the amount in controversy exceeds' the
jurisdictional threshold.” Dart Cherokee Basin
Operating Co., LLC v. Owens, 574 U.S. 81 (2014) (quoting
28 U.S.C. § 1446(c)(2)(B)).
argues that the requisite amount in controversy is apparent
from the face of Krikorian's complaint.
If a defendant alleges that removability is apparent from the
face of the complaint, the district court must evaluate
whether the complaint itself satisfies the defendant's
jurisdictional burden. In making this determination, the
district court is not bound by the plaintiff's
representations regarding its claim, nor must it assume that
the plaintiff is in the best position to evaluate the amount
of damages sought. [Pretka v. Kolter City Plaza II,
Inc., 608 F.3d 744');">608 F.3d 744, ] 771[ (11th Cir. 2010)]. Indeed, in
some cases, the defendant or the court itself may be
better-situated to accurately assess the amount in
controversy. See Id. (explaining that
“sometimes the defendant's evidence on the value of
the claims will be even better than the plaintiff's
evidence, ” and that a court may use its judgment to
determine “which party has better access to the
Eleventh Circuit precedent permits district courts to make
“reasonable deductions, reasonable inferences, or other
reasonable extrapolations” from the pleadings to
determine whether it is facially apparent that a case is
removable. See Id. at 754. Put simply, a district
court need not “suspend reality or shelve common sense
in determining whether the face of a complaint ...
establishes the jurisdictional amount.” See
Id. at 770 (quoting Roe v. Michelin N. Am.,
Inc., 637 F.Supp.2d 995, 999 (M.D. Ala. 2009)); see
also Williams, 269 F.3d at 1319 (11th Cir. 2001)
(allowing district courts to consider whether it is
“facially apparent” from a complaint that the
amount in controversy is met). Instead, courts may use their
judicial experience and common sense in determining whether
the case stated in a complaint meets federal jurisdictional
Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061-62
(11th Cir. 2010).
removing defendant is not required to prove the amount in
controversy beyond all doubt or to banish all uncertainty
about it.” Pretka, 608 F.3d at 754.
“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). However, “[b]ecause removal
jurisdiction raises significant federalism concerns, federal
courts are directed to construe removal statutes strictly[,
]” and “all doubts about jurisdiction should be
resolved in favor of remand to state court.” Univ.
of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th
One through Four each demand punitive damages, in addition to
compensatory, consequential, and/or actual damages. As Ford
correctly notes, “[w]hen determining the jurisdictional
amount in controversy in diversity cases, punitive damages
must be considered, unless it is apparent to a legal
certainty that such cannot be recovered.” Holley
Equip. Co. v. Credit All. Corp., 821 F.2d 1531, 1535
(11th Cir. 1987) (per curiam) (citations and footnote
omitted). Ford first argues that an open-ended punitive
damages demand, by itself, is prima facie evidence
of § 1332(a)'s requisite amount in controversy,
absent an express stipulation to a lesser amount of damages
by the plaintiff. In making this argument, Ford asks the
Court to adopt the reasoning of Smith v. State Farm Fire
& Casualty Co., 868 F.Supp.2d 1333 (N.D. Ala. 2012)
(Acker, J.), in which the district judge, in denying a motion
to remand challenging § 1332(a)'s amount in
controversy, stated: “The court is willing to go so far
as to inform plaintiffs … who want to pursue claims
against diverse parties in a state court seeking unspecified
damages of various kinds, such ...