United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Pauline Stricker
Wyss' Motion for Remand (Doc. 8) and Defendant Wendy H.
Kowalik's interrelated Amended Rule 41(d) Motion (Doc.
The Motions are fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 8). For the following reasons,
Plaintiff's Motion will be GRANTED and
Defendant's Motion will be DENIED.
Pauline Stricker Wyss (“Plaintiff”) originally
filed this action for conversion (Count I), unjust enrichment
(Count II) and money had and received (Count III) against
Defendant Wendy H. Kowalik (“Defendant”) on
October 9, 2018, in Phelps County Circuit Court (Doc. 1-1).
Plaintiff, wife of decedent John Lewis Wyss
(“decedent”), alleges that Defendant,
granddaughter of decedent and the executor of his estate,
transferred to Plaintiff ownership of a bank account
(“Account”) at decedent's instructions and
during his lifetime. As a part of the transfer, Defendant
remained as an authorized signer on the Account. During the
time Plaintiff was the sole owner of the Account, Defendant
withdrew approximately $38, 218.98.
November 25, 2018, Defendant removed the original petition to
this Court and the case was randomly assigned to the
undersigned. See Wyss v. Kowalik, No.
4:18-CV-01970-NCC. On December 19, 2018, Plaintiff filed a
Voluntary Dismissal Without Prejudice in the original case
(Doc. 1-2). That same day, Plaintiff filed a second petition
in Phelps County Circuit Court in which she raises the same
claims but has modified her prayer for relief under each
count to request the court award damages that “do not
bring the total award in this matter to an amount greater
than $74, 999.99, ” punitive damages, reasonable costs,
as well as other and further relief the Court deems just and
proper (Doc. 3). Plaintiff personally signed the petition
(Id. at 6).
timely removed the second petition to this Court on January
25, 2019, based on diversity jurisdiction (Doc. 1). On
February 15, 2019, Plaintiff filed a Motion for Remand in
which Plaintiff asserts the amount in controversy is not met
because Plaintiff alleges that Defendant wrongfully took $38,
218.98 from Plaintiff's bank account, a number well below
the jurisdictional threshold (Doc. 6). Plaintiff further
argues that she expressly limited her award of damages in the
petition which is personally signed by Plaintiff
(Id.). Plaintiff also requests $1, 542.00 in
attorney's fees incurred in connection with seeking
remand in this case (Id. at 6). Plaintiff
concurrently filed a “Motion for Hearing if Court Deems
Necessary” in which Plaintiff requests a hearing on the
Motion to Remand if the Court does not intend to rely solely
on written pleadings (Doc. 7). In response to the Motion for
Remand, Defendant argues that Plaintiff's pleadings are
contradictory and, while they appear to limit damages to $74,
999.99, Plaintiff seeks punitive damages which, under
Missouri law, allows for five times the judgment up to $500,
000 (Doc. 12). Defendant also asserts that Plaintiff's
request for variances of the traditional “other and
further relief the Court deems just and proper”
included in Plaintiff's prayers for relief under each
Count would necessarily result in an additional award greater
than the two cents to overcome the jurisdictional threshold
Plaintiff's Motion to Remand was pending, Defendant filed
a Rule 41(d) Motion (Doc. 17). In her Motion, Defendant
asserts that, pursuant to Federal Rule of Civil Procedure
41(d), she is entitled to costs for litigating the prior
action and the Court should stay the current matter until she
is paid because Plaintiff “clearly and in bad faith
dismissed the previous suit not to end the matter, but only
in an attempt to avoid federal jurisdiction and review”
(Doc. 17). Plaintiff responds that limiting her damages to
avoid federal jurisdiction is not, in itself, improper (Doc.
Motion for Remand
courts have original jurisdiction where the parties are
citizens of different states and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). Where a complaint
alleges no specific amount of damages or an amount under the
jurisdictional minimum, the removing party must prove by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000. 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). “To meet this burden, the defendant must present
some specific facts or evidence.” Harris v.
Transamerica Life Ins. Co., 2014 WL 1316245, at *1 (E.D.
Mo. Apr. 2, 2014) (internal quotation marks omitted). 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. Green v. Dial Corp., 2011 WL 5335412, at *1
(E.D. Mo. Nov. 4, 2011) (citing Bell, 557 F.3d at
956). Doubts concerning federal jurisdiction are resolved in
favor of remand. Bell, 557 F.3d at 956.
has failed to establish by a preponderance of the evidence
that the amount in controversy in this case exceeds $75, 000.
On the face of the petition, Plaintiff limits the amount of
recoverable damages to $74, 999.99, an amount under the
jurisdictional minimum. Defendant asserts that with
“other and further relief” and punitive damages
the jurisdiction threshold is met. Defendant fails to cite
any authority supporting its assertion that the Court should
consider the “other and further relief” language
in its calculation of the jurisdictional amount. Regardless,
such language is insufficient to meet Defendant's burden.
See Ahmed v. GCA Prod. Servs., Inc., 249 F.R.D. 322,
324 (D. Minn. 2008) and Chief Indus., Inc. v. Campus
Lofts, Inc., No. 8:05CV167, 2005 WL 3508456, at *4 (D.
Neb. Dec. 22, 2005) (both rejecting similar arguments).
Additionally, “[w]hile punitive damages are included in
the amount in controversy, the existence of the required
amount must be supported by competent proof.”
OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 348
(8th Cir. 2007). “Indeed, when determining the amount
in controversy, a claim for punitive damages is to be given
closer scrutiny, and the trial judge accorded greater
discretion, than a claim for actual damages.” Kina
v. Mindland Funding, LLC, No. 4:15-CV-00950 ERW, 2015 WL
5487357, at *2 (E.D. Mo. Sept. 16, 2015) (citing Larkin
v. Brown, 41 F.3d 387, 389 (8th Cir. 1994)). Here,
Plaintiff has made only conclusory allegations concerning the
Defendant's conduct for punitive damages, so the Court
has no way, based on the state court petition, to determine
whether a reasonable fact finder might conclude that punitive
damages are applicable. Further, Defendant has not provided
any evidence in support of her assertion. Such speculation is
insufficient to meet the defendant's burden of proof
under the preponderance of the evidence standard.
Court has also considered plaintiff's request for
attorney's fees incurred in connection with seeking
remand of this case. When remanding an action to state court,
a district court may require defendants to pay just costs and
actual expenses that a plaintiff has incurred as a result of
improper removal. 28 U.S.C. § 1447(c). An award of costs
and fees under § 1447(c) depends on the reasonableness
of the removal. Convent Corp. v. City of North Little
Rock, Ark., 784 F.3d 479, 483 (8th Cir. 2015).
“Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Nevertheless, district courts “retain discretion to
consider whether unusual circumstances warrant a departure
from the rule in a given case.” Id. In
determining whether the removing party lacked an objectively
reasonable basis for seeking removal, the Court does not
consider the removing defendant's motive, but instead
must consider “the objective merits of removal at the
time of removal, irrespective of the ultimate remand.”
Convent, 784 F.3d at 483; Nguyen v. Outfield
Brewhouse, LLC, No. 4:17-CV-00973-JAR, 2017 WL 3085325,
at *3 (E.D. Mo. July 19, 2017).
this case presents a close question, the Court finds that
fees are not warranted because Defendant had an objectively
reasonable basis for seeking removal of this case, at least
with respect to diversity jurisdiction under 28 U.S.C. §
1332. While the Court was ultimately not persuaded by
Defendant's arguments that “other and further
relief” and punitive damages could exceed the
jurisdictional threshold, Defendant did have an objectively
reasonable basis for removal for purposes of determining
whether Plaintiff should be awarded attorney's fees.
in light of the Court's determination remanding this