Bush v. Winn Dixie Montgomery, LLC

132 F. Supp. 3d 1317, 2015 U.S. Dist. LEXIS 115272, 2015 WL 5121337
CourtDistrict Court, N.D. Alabama
DecidedAugust 31, 2015
DocketCIVIL ACTION NO. 2:15-cv-1133-WMA
StatusPublished
Cited by4 cases

This text of 132 F. Supp. 3d 1317 (Bush v. Winn Dixie Montgomery, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bush v. Winn Dixie Montgomery, LLC, 132 F. Supp. 3d 1317, 2015 U.S. Dist. LEXIS 115272, 2015 WL 5121337 (N.D. Ala. 2015).

Opinion

MEMORANDUM OPINION

WILLIAM M. ACKER, JR., UNITED STATES DISTRICT JUDGE

Plaintiff, Karen Bush (“Bush”), has moved to remand her above entitled action to the Circuit Court of Jefferson County (Bessemer Division), from which it was removed by defendant, Winn Dixie Montgomery, LLC (“Winn Dixie”). The notice of removal invokes this court’s original jurisdiction pursuant to 28 U.S.C. § 1332, claiming that the parties are diverse and that the amount in controversy exceeds $75,000, exclusive of interest and costs. The question before the court, however, is not whether the requisites for § 1332 jurisdiction exist, but whether the removal was timely under 28 U.S.C. § 1446(b).

Winn Dixie was served with the complaint on July 21, 2014. It did not remove until July 7, 2015, nearly a year later, when it was bumping up on the one-year limitation on removal provided by 28 U.S.C. § 1446(c). It attempts to justify its delay by asserting in its notice of removal that it only learned that Bush was seeking more than $75,000 when she failed to respond to its request made in state court on May 28, 2015, for an admission that “[pjlaintiffs [sic] seek damages in this action in excess of $75,000.00, exclusive of costs and interest.” Winn Dixie offers no explanation for its nine month wait to request the said admission.

Although Bush’s complaint contained no ad damnum clause, it is impossible for this court to believe that in today’s world Winn Dixie, a sophisticated business entity, believed that the amount being sought by Bush was less than $75,000 or was so speculative that clarification was needed. Most Alabama defendants and federal judges, including this one, are not guessing or speculating when they recognize the obvious from the complaint itself, based on their experience, intelligence, and common sense. All of this will be discussed infra.

Not too many years ago, the fact that a complaint filed in an Alabama court contained no ad damnum would have been an invitation for a defendant to do exactly what Winn Dixie did here. But, because federal judges in Alabama in that earlier era were routinely remanding diversity cases for lack of a clear appearance of the jurisdictional amount in the state court complaint, the Eleventh Circuit took corrective steps. That court, which binds this court and every other Alabama federal court, has finally acknowledged the self-evident, namely, that a plaintiff like Bush, who claims to have sustained a very substantial personal injury at the hands of a defendant and who charges that defendant with wantonness and who seeks to recover for pain, suffering, and mental anguish, and seeks punitive damages, is realistically hoping to recover more than $75,000. This is no more than a recognition of verdict inflation since the jurisdictional amount was raised from $10,000 to $50,000 in 1988, and from $50,000 to $75,000 in 1996, and of the Congressional intent when it enacted § 1332 to provide a federal forum for defendants that are faced with major financial exposure if they proceed to trial in the state forum chosen by a resident plaintiff. This new opening of the federal courts of Alabama to non-resident defendants has taken away the artificial and unfair obstacle to removal erected by Alabama plain[1319]*1319tiffs, namely, the expedient of leaving out an ad damnum clause. This court has since 2010 reversed course and held that a plaintiff like Bush who wants to stay in her chosen forum must formally acknowledge a $74,999.99 limitation on any recovery. See Smith v. State Farm Casualty Co., 868 F.Supp.2d 1333 (N.D.Ala.2012). It was in Smith v. State Farm that this court coined the phrase “THAT WAS THEN. THIS IS NOW.”

This revolutionary proposition was thoroughly and persuasively expounded by the Eleventh Circuit in Roe v. Michelin North America, Inc., 613 F.3d 1058 (2010). The court affirmed the opinion of district judge Thompson of the Middle District of Alabama in Roe v. Michelin North America, Inc., 637 F.Supp.2d 995 (2009), and held:
Michelin’s notice of removal states that it is facially apparent from Roe’s complaint that the case, more likely than not, exceeds the $75,000 amount-in-controversy requirement. Roe argues it is not for the district court to determine whether the claim likely exceeds $75,000, if the plaintiff has not explicitly stated the amount of damages he seeks. 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.” 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). In some cases, this burden requires the removing defendant to provide additional evidence demonstrating that removal is proper. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir.2010). In other cases, however, it may be “facially apparent” from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when “the complaint does not claim a specific amount of damages.” See id. at 754 (quoting Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir.2001)).
* * :|:
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 requirements. This approach is consistent with those of other-circuits.
The issue arises with some frequency in the Fifth Circuit, because “plaintiffs in Louisiana state courts, by law, may not specify the numerical value of claimed damages.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000) (citing La.Code Civ. Proc. art. 893).

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132 F. Supp. 3d 1317, 2015 U.S. Dist. LEXIS 115272, 2015 WL 5121337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-winn-dixie-montgomery-llc-alnd-2015.