United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
matter is before this Court on Plaintiff Michael
Keithly's (“Plaintiff”) Motion to Remand this
matter to state court. (ECF No. 12) Defendant Lindsey Mocadlo
(“Defendant”) opposes this motion, and the issues
are fully briefed. The Court has jurisdiction over the matter
pursuant to the consent of the parties under 28 U.S.C. §
636(c). For the following reasons, the Court will deny
Plaintiff's Motion to Remand.
September 21, 2016, Plaintiff filed a Petition in the Circuit
Court of the Twenty-First Judicial Circuit, St. Louis County,
Missouri alleging that on August 18, 2016, while driving east
on Highway 40, Defendant struck Plaintiff's vehicle,
injuring Plaintiff. In the Petition, Plaintiff alleges
negligence by Defendant due to Defendant operating her
vehicle at an excessive speed, failing to keep a careful
lookout, failing to yield, and failing to slacken speed,
stop, swerve, and sound a warning. (ECF No. 1-1, Petition at
¶ 6) Plaintiff claims permanent, progressive, and
disabling injuries to various bones, joints, muscles, nerves,
and systems of his body, damage to his automobile, damage to
his personal property, storage and rental car fees, lost
wages, and permanent impairment of his ability to work,
labor, and enjoy life. (Id. at ¶ 7) Defendant
denies Plaintiff's allegations and offers four
affirmative defenses, to the extent that any injuries exist.
(ECF No. 1-4) First, Defendant alleges that Plaintiff failed
to state a claim upon which relief can be granted.
(Id.) Second, Defendant alleges that Plaintiff made
his injuries worse by his own failure to mitigate.
(Id.) Third, Defendant alleges that Plaintiff caused
his own injuries by his own negligence. (Id.)
Finally, Defendant alleges that the actions of others who are
not a party to the lawsuit cause Plaintiff's injuries.
Defendant's Removal and Plaintiff's Motion to
December 5, 2016, Defendant removed the matter to federal
court. (ECF No. 1) Defendant based removal on diversity
jurisdiction, which requires complete diversity of
citizenship among the litigants and an amount in controversy
greater than $75, 000, exclusive of interest and costs. 28
U.S.C. § 1332(a). The parties agree that Plaintiff is a
citizen of Missouri and Defendant is a citizen of Wisconsin.
(ECF No. 12)
established diversity of citizenship, the parties dispute
whether the amount in controversy exceeds $75, 000, exclusive
of interest and costs. Plaintiff asserts that he lacks
sufficient information to determine whether or not the amount
in controversy exceeds $75, 000. (ECF No. 1-2) Defendant
argues that based on the extent and severity of
Plaintiff's alleged injuries, the amount in controversy
is greater than $75, 000. (ECF No. 1, Notice of Removal
¶ ¶ 4-7) Plaintiff responds that Defendant failed
to prove the amount in controversy by a preponderance of the
evidence, and that the Court should therefore remand his
claim. (ECF No. 12)
complaint alleges no specific amount of damages, the removing
party must prove by a preponderance of the evidence that the
amount in controversy meets the jurisdictional requirements.
Bell v. Hershey Co., 557 F.3d 953, 956
(8th Cir. 2009); In re Minnesota Mut. Life
Ins. Co. Sales Practices Litig., 346 F.3d 830, 834
(8th Cir. 2003); Kopp v. Kopp, 280 F.3d
883, 885 (8th Cir. 2002). In this circuit, the
amount in controversy equals “the value to the
plaintiff of the right sought to be enforced.”
Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 821
(8th Cir. 2011) (quoting Advance Am. Servicing
of Ark. V. McGinnis, 526 F.3d 1170, 1173 (8th
Cir. 2008)). “The jurisdictional fact . . . is not
whether the damages are greater than the requisite
amount, but whether a fact finder might legally
conclude they are.” James Neff Kramper Family Farm
P'ship v. IBP, Inc., 393 F.3d 828, 833
(8th Cir. 2005) (quoting Kopp, 280 F.3d
at 885). Based on the allegations in the Petition, which
Defendant cited in her notice of removal, a fact finder might
legally (and reasonably) conclude that the damages exceed
$75, 000, exclusive of cost.
the removing party meets its burden of proof, the
non-removing party must establish to a legal certainty that
the amount in controversy is less than $75, 000. Green v.
Dial Corp., 2011 WL 5335412, at *1 (E.D. Mo. Nov. 4,
2011) (citing Bell, 557 F.3d at 956). Plaintiff
“does not know the amount in controversy, ” and
therefore cannot establish it to a legal certainty. (ECF No.
Eighth Circuit, plaintiffs may also establish the amount in
controversy to a legal certainty through a binding
stipulation. “Where state law prohibits plaintiffs from
specifying damages in their state court complaints, this
Court and others in the Eighth Circuit have considered a
post-removal stipulation to determine whether jurisdiction
has attached” as long as the stipulation clarifies,
rather than amends the original pleading. Toberman v. BPV
Market Place Investors, LLC, No. 4:16-CV-519 (CEJ) (E.D.
Mo. Jun. 1, 2016) (citing Ingram v. Proctor & Gamble
Paper Products Co., No. 4:11-CV-549 (CAS), 2011 WL
1564060, at *2 (E.D. Mo. Apr. 25, 2011)). Because Plaintiff
“has not entered into a binding stipulation that the
amount in controversy does not, and will not exceed the
Court's jurisdictional amount in controversy, nor has he
offered to do so, Plaintiff's arguments are
dubious.” Schmidt v. Flesch, No. 4:05-CV-1498
(HEA), 2006 WL 1026952, at *2 (E.D. Mo. Apr. 13, 2006).
Plaintiff claims permanent, progressive, and disabling
injuries to various bones, joints, muscles, nerves, and
systems of his body, damage to his automobile, damage to his
personal property, storage and rental car fees, lost wages,
and permanent impairment of his ability to work, labor, and
enjoy life. (ECF No.1-1, Petition at ¶ 7) Based solely
on the allegations in the Petition, the undersigned finds
that Plaintiff's alleged damages, while not known to a
certainty, exceed $75, 000.
Plaintiff has failed to prove the amount in controversy to a
legal certainty or make a binding stipulation as to the
amount in controversy, the Court cannot conclude that the
jurisdictional amount at the time of removal did not exceed
$75, 000. See, e.g. Id.; Workman v. Kawasaki
Motors Corp., U.S., 749 F.Supp. 1010, 1011 (W.D. Mo.
1990). Based on the face of the Petition and the notice of
removal, the Court finds that it has subject matter
IT IS HEREBY ORDERED that Plaintiff's
Motion to ...