United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED, STATES DISTRICT JUDGE
slip and fall action is before the Court on Plaintiff George
Poole's motion to remand the case to state court.
Plaintiff argues that the $75, 000 amount in controversy
requirement for federal diversity jurisdiction is not met.
For the reasons set forth below, the motion will be granted.
alleges in his complaint filed in Missouri state court that
while he was shopping at Defendant's store in St. Louis,
Missouri, he slipped on a floor that was wet due to
Defendant's negligence. He alleges that he sustained
injuries documented by hospital medical records, and he seeks
“Compensation of $75, 000 in damages.” Defendant
timely removed the case to this Court on March 22, 2018,
based on the Court's diversity jurisdiction, 28 U.S.C.
§ 1332(a), stating in the Notice of Removal that
“[u]pon information and belief, Plaintiff will seek
damages for injury to his hip and back in excess of $75,
000.00 exclusive of costs.” ECF No. 1 at 2.
now moves to remand the case, arguing that Defendant failed
to carry its burden to establish that the case meets the
minimum amount in controversy requirement for federal court
jurisdiction. Plaintiff's counsel attests by affidavit
that on April 16, 2018, he called counsel for Defendant and
asked him to withdraw the Notice of Removal on the basis that
Plaintiff “would agree to seek less than $75,
000.” ECF No. 11-1. Plaintiff's counsel further
attests that he offered to enter into a binding stipulation
to be filed with the Court that less than $75, 000 in damages
would be sought, but his offer was rejected, and defense
counsel stated that Defendant preferred federal court and
Plaintiff would have to file a motion to remand if he wanted
the case remanded. In addition to remand, Plaintiff asks for
attorney's fees and costs incurred in seeking the remand,
as allowed under 28 U.S.C. § 1447.
responds that the motion to remand should be denied because
the state court petition and subsequent communication between
counsel suggest that Plaintiff believed, at the time of
removal, that the value of his claim was at least $75, 000.
Defendant relies in large part on the fact that Plaintiff
never filed a binding stipulation that the value of his claim
was less than $75, 000. Defense counsel attests that
Plaintiff's counsel telephoned defense counsel on April
9, 2018 (18 days after the case was removed) and stated that
Plaintiff would agree not to seek more than $75, 000, and
wanted to know if defense counsel would
“withdraw” the Notice of Removal. ECF No. 14-1.
When asked if Plaintiff's counsel intended to enter an
appearance with the Court and so notify the Court,
Plaintiff's counsel advised that he had no intention of
doing so. Id.
also submits copies of the following letters exchanged
between the parties' counsel after the phone call. On
April 11, 2018, Plaintiff's counsel sent defense counsel
a letter stating that Plaintiff was seeking less than $75,
000 and instructing defense counsel to so advise the Court.
In response, defense counsel inquired as to how much
Plaintiff did intend to seek at trial. Plaintiff's
counsel responded that the Plaintiff “is still
considering treatment options at this time. [Plaintiff] will
be seeking an amount at trial that is fair and reasonable and
supported by evidence not to exceed $74, 999.00.” ECF
Nos. 14-2, 14-3, 14-4.
argues that even if the Court were to conclude that remanding
this case to state court is appropriate, the request for
attorney's fees should be denied, because at the time of
removal, there was an objectively reasonable basis to seek
removal. Plaintiff replies that in light of his
attorneys' multiple representation to defense counsel
that Plaintiff was seeking less than $75, 000, fees and costs
should be awarded to Plaintiff.
courts have jurisdiction where the parties are citizens of
different states and the amount in controversy exceeds $75,
000. See 28 U.S.C. § 1332(a). When a defendant removes a
civil action to federal court and its notice of removal
includes a good faith, plausible allegation that the amount
in controversy exceeds the jurisdictional threshold, the
“allegation should be accepted when not contested by
the plaintiff or questioned by the court.” Dart
Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct.
547, 553, 190 L.Ed.2d 495 (2014). “However, where the
plaintiff contests the defendant's amount-in-controversy
allegation, [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.” Waters v. Ferrara Candy Co., 873
F.3d 633, 635-36 (8th Cir. 2017) (citing Dart
Cherokee, 135 S.Ct. at 553-54 & 554 n.1). “In
such a case, both sides submit proof and the court decides,
by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied.”
Id. at 554.
party seeking to remove a case to federal court bears the
burden of establishing federal jurisdiction.”
Westerfeld v. Indep. Processing, LLC, 621 F.3d 819,
822 (8th Cir. 2010). “Importantly, the issue is not
whether the damages are in fact greater than $75, 000.00, but
whether a fact finder might legally conclude that
they are. Once 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.” Hughes v. Transwood,
Inc., No. 4:17CV01943 PLC, 2018 WL 1762719, at *2 (E.D.
Mo. Apr. 12, 2018) (citation omitted).
this burden, the defendant must present “some specific
facts or evidence.” Id. “Engaging in
speculation or presumptions about the amount in controversy
is insufficient to demonstrate satisfaction of the required
amount.” Id. A defendant's evidence may
include, for example, settlement offers by the plaintiff
exceeding the jurisdictional amount, or “an extensive
list of serious and disabling injuries suffered by the
plaintiff.” Neighbors v. Muha, No.
05-472-CV-W-GAF, 2005 WL 2346968, *2 (W.D. Mo. Sept. 26,
2005). When other evidence of record supports a finding that
the amount in controversy is satisfied, a plaintiff's
“refusal to stipulate to a damage award amount of $75,
000.00 or less may be persuasive, ” but such a refusal
“in and of itself is not sufficient to satisfy the
amount in controversy requirement.” Hughes,
2018 WL 1762719, at *3 (citing Biomedical Sys. Corp. v.
Crawford, No. 4:15CV1775 CDP, 2016 WL 147146, at *2
(E.D. Mo. Jan. 13, 2016)). “Removal statutes are
strictly construed, and any doubts about the propriety of
removal are resolved in favor of state court jurisdiction and
remand.” First Baptist Church of Bland v. Grinnell
Mut. Reinsurance Co., No. 4:18-CV-00099-NCC, 2018 WL
1762717, at *1 (E.D. Mo. Apr. 12, 2018).
the Court concludes that Defendant has not met its burden of
showing that a fact finder might conclude that
Plaintiff's damages are more than $75, 000. Defendant has
essentially presented no evidence that the value of
Plaintiff's claim exceeds $75, 000. Cf.
Hughes, 2018 WL 1762719, at *3 (finding that the
defendant met its burden of establishing amount in
controversy where the plaintiff did not limit his request for
damages in his petition to less than $75, 000 and, after
filing the lawsuit but before removal, demanded $100, 000 to
settle the case, and the defendant submitted documentation
with respect to the scope and cost of treatment for the
plaintiff's serious injuries to his neck, arm, and back,
the extent of repairs to the plaintiff's damaged vehicle,
and the loss of his business); Parshall v. Menard, Inc.
d/b/a Menards, No. 4:16-CV-828 (CEJ), 2016 WL 3916394,
at *3-4 (E.D. Mo. July 20, 2016) (denying remand upon finding
the defendant established by a preponderance of the evidence
that a fact finder might legally conclude damages were
greater than $75, 000 based on a settlement demand over $75,
000; the plaintiff's allegations of serious injuries to
the plaintiff's upper left extremity, left shoulder, and
neck, including continuing medical expenses and lost wages;
and the plaintiff's request for an unlimited amount of
damages). Moreover, Plaintiff has agreed to stipulate that
Plaintiff will not seek more than $74, 999 at trial.
the Court will resolve any doubt on the matter in favor of
remand and grant Plaintiff's motion to remand, subject to
Plaintiff's stipulation not to seek or accept more than
$75, 000. However, the Court agrees with Defendant that an
award of attorney's fees to Plaintiff is not warranted.
“Absent unusual circumstances, courts may award
attorneys' fees under §1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital
Corp.,546 U.S. 132, 141 (2005). Here, the Court cannot