United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge.
before the Court are (1) Plaintiff's Motion to Remand
(Doc. No. 6); and (2) Plaintiffs' [sic] Motion to Stay
Proceedings Pending Remand and Suggestions in Support (Doc.
No. 7). These motions are considered, below.
filed this action in the Circuit Court of Jackson County,
Missouri, at Kansas City on July 17, 2017. Plaintiff claims
that defendant negligently maintained its premises in Kansas
City, Missouri on September 23, 2016, resulting in an injury
to plaintiff, who slipped and fell while at the Plaza Art
Fair. Plaintiff seeks compensatory and punitive damages.
Following service, defendant removed this action on August
21, 2017, asserting that plaintiff is a citizen of Kansas,
and defendant GMRI is incorporated in the state of Florida
and maintains its principal place of business in Florida,
satisfying the requirement for complete diversity between the
parties. See 28 U.S.C. §§ 1332 and 1441.
Defendant also notes that plaintiff sent a written settlement
demand letter seeking damages in the amount of $215, 500 on
February 28, 2017, meeting the statutory minimum amount in
controversy of $75, 000. See Hall v. Vlahoulis, No.
06-6107-CV-SJ-FJG, 2007 U.S. Dist. LEXIS 8043, at **4-5
(W.D.Mo. Feb. 5, 2007) (noting that “evidence [to
remove a case] may include plaintiff's representations,
‘including settlement offers by plaintiff exceeding the
August 29, 2017, the Court issued its order directing the
parties to conduct an initial conference under Fed.R.Civ.P.
26(f) no later than September 28, 2017, and to file a
proposed scheduling order by October 30, 2017 (Doc. No. 5).
On August 31, 2017, defense counsel contacted plaintiff's
counsel requesting times to conduct an initial conference;
plaintiff's counsel responded: “This case should
never have been removed. We are asking for under $75, 000.
Note our petition and last demand. We will be responding
formally soon.” Doc. No. 8, Ex. A.
September 15, 2017, plaintiff filed a motion to remand (Doc.
No. 6), arguing that the amount in controversy does not
exceed $75, 000. Plaintiff notes that her state court
Petition prays for money damages “in an amount
sufficient to punish and deter the defendants and others
similarly situated from like conduct, for their costs herein
expended, plus prejudgment interest, all of which is in an
amount of $75, 000 or less, and for such
other relief as the court deems just and proper.” Doc.
No. 1-1, p. 7 (emphasis added). The Petition further states,
“The amount in controversy is $75, 000.00 or
less.” Id. at ¶ 4. Plaintiff further
notes her petition includes a claim for punitive damages.
Plaintiff argues that these statements in the Petition
demonstrate that the amount in controversy does not exceed
$75, 000.00. Plaintiff argues that in St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938), the
Supreme Court held “[i]f [a plaintiff] does not desire
to try his case in the federal court he may resort to the
expedient of suing for less than the jurisdiction amount, and
though he would be justly entitled to more, the defendant
cannot remove.” Id. at 294. Plaintiff says
that here, defendant has offered no proof that the amount in
controversy exceeds $75, 000.00. Also on September 15, 2017,
plaintiff sent a letter to defendant demanding settlement in
the amount of $75, 000.
to formally responding to the motion to remand, defense
counsel asked plaintiff to stipulate that she does not seek
and will not accept any award of damages over $75, 000.
Defense counsel also again requested a date for a Rule 26(f)
conference, noting that disagreement as to whether this Court
has jurisdiction over the matter “does not grant the
parties the right to disregard Court orders of the Rules of
Federal Procedure.” Doc. No. 8, Ex. A. Plaintiff's
counsel refused to stipulate to a damage award of less than
$75, 000, and refused to participate in a Rule 26 conference
until the pending motions were ruled.
Standard and Analysis
Motion to Remand
Eighth Circuit has held that where a complaint alleges no
specific amount of damages or an amount under the
jurisdictional minimum (as plaintiff has done here), the
removing party “must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,
000.” In re Minnesota Mut. Life Ins. Co. Sales
Practices Litig., 346 F.3d 830, 834 (8th Cir.
2003); Drobnak v. Andersen Corp., 561 F.3d
778, 786 (8th Cir. 2009); James Neff Kramper
Family Farm Partnership v. IBP, Inc., 393 F.3d 828, 831
(8th Cir. 2005); State of Mo. ex rel. Pemiscot County,
Mo. v. Western Sur. Co., 51 F.3d 170, 173 (8th Cir.
1995) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed.
1135 (1936)). To satisfy the preponderance of the evidence
standard, the party seeking removal must offer “some
specific facts or evidence demonstrating that the
jurisdictional amount has been met.” Hill v. Ford
Motor Co., 324 F.Supp.2d 1028, 1036 (E.D. Mo. 2004). The
Court will apply the preponderance of the evidence standard
to this case consistent with the Eighth Circuit case law.
as stated above, argues that her prayer for relief
specifically requests damages of $75, 000 or less, and
therefore argues that the case could not be removed.
Defendant, however, provided evidence from other papers
(i.e., the settlement demand) indicating that plaintiff
believes her case is worth far more than $75, 000. In order
to demonstrate that the case meets the amount in controversy,
the removing party need not prove that “the damages
are greater than the requisite amount, ” but
that “the claims ... could, that is might, legally
satisfy the amount in controversy requirement.”
James Neff Kramper Family Farm P'ship v. IBP,
Inc., 393 F.3d 828, 833 (8th Cir. 2005) (citations
omitted). The party removing the action must present
“some specific facts or evidence demonstrating that the
jurisdictional amount has been met.” Hoffmann v.
Empire Mach. & Tools Ltd., No. 4:10-CV-00201-NKL,
2010 WL 2216631, *2 (W.D. Mo. May 28, 2010).
present matter, defendant has complied with its burden of
proof by submitting plaintiff's demand letter to the
Court, which made a pre-suit settlement demand of $215, 000,
an amount far in excess of the requisite amount in
controversy. In addition, plaintiff requests punitive
damages, which are also considered in determining the amount
in controversy. Crawford v. F. Hoffman-La Roche
Ltd., 267 F.3d 760, 766 (8th Cir. 2001)). Given the
facts pled by plaintiff as well as the demands for punitive
damages and the pre-suit demand of $215, 000, the Court finds
that defendant has established by a preponderance of the
evidence that the jurisdictional minimum is satisfied.
the removing party has established by a preponderance of the
evidence that the jurisdictional minimum is satisfied, remand
is only appropriate if the plaintiff can establish to a legal
certainty that the claim is for less than the requisite
amount.” Hargis v. Access Capital Funding,
LLC, 674 F.3d 783, 790 (8th Cir. 2012) (citing Bell
v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009)).
“The legal-certainty standard is not met if even a
possibility exists of recovering more than the statutory
minimum.” Claxton v. Kum & Go, L.C., No.
6:14-cv-03385-MDH, 2014 WL 6685816, *3 (W.D.Mo. Nov. 26,
plaintiff has not demonstrated to a legal certainty that the
claim is for less than the requisite amount. The Petition
states that the damages are $75, 000 or less, but as noted by
defendant, Rule 55.33(b) of the Missouri Rules of Civil
Procedure provides that the Petition's Prayer for Relief
can be amended up to and after the time of judgment. In other
words, the language used in plaintiff's petition does not
bind her to her $75, 000 demand. Although plaintiff has
stated in her Petition that her damages are $75, 000 or less,
she has not met the legal certainty standard of showing that
the amount in controversy does not exceed $75, 000, which she
could have done by signing a binding stipulation clarifying
that she does not seek and will not accept an award of
damages over $75, 000. See Penn v. Cypress Media,
L.L.C, 15-CV-00397-W-FJG, ...