United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion to
remand the case to the state court from which it was removed.
ECF No. 6. For the reasons set forth below, the Court will
deny the motion.
the Court's second examination of its subject matter
jurisdiction in this case. Plaintiff Roosevelt Walker worked
for Defendant Federal Express earning approximately $15, 000
per year until August 30, 2016, when, at age 61, Walker left
the company allegedly due to age discrimination and a hostile
and unsafe work environment. Walker originally filed suit pro
se in March 2017 in Missouri state court. His petition
incorporated his complaints with the Missouri Commission on
Human Rights and the federal Occupational Safety and Health
Administration but failed to specify the relief sought.
Defendant removed the case to this Court, which remanded the
case back to state court for lack of subject matter
jurisdiction, reasoning that: (1) OSHA does not create a
private cause of action, so Plaintiff had no claim invoking
federal question jurisdiction, and (2) the amount in
controversy could not satisfy the threshold for diversity
jurisdiction. More specifically with respect to the latter,
the Court noted that Walker did not claim front pay, damages
for emotional distress, or punitive damages, so the amount in
controversy could not be expected to exceed $75, 000 without
pure speculation. Walker v. Federal Express, No.
4:17-CV-1503-AGF, ECF No. 8.
filed an amended petition in state court in July 2018, this
time represented by counsel, asserting claims of age
discrimination and retaliation under the Missouri Human
Rights Act (Mo. Rev. Stat. § 213.010 et seq.) and
seeking multiple forms of damages, including back pay, front
pay, damages for emotional distress, and punitive damages. On
October 24, 2018, Defendant served on Plaintiff a request for
admission asking Plaintiff to admit or deny that he was
seeking damages over $75, 000. On December 17, 2018,
Plaintiff responded that he sought $19, 976.34 in
compensatory damages, $14, 986 in punitive damages
(representing one year's salary), and $7, 500 in legal
fees, for a total settlement demand of $42, 462.34, but that
he would seek punitive damages over $75, 000 at trial.
January 16, 2019, Defendant again removed the case to this
Court (ECF No. 5), asserting that Plaintiff's claim for
punitive damages now satisfies the monetary threshold for
diversity jurisdiction under 28 U.S.C. § 1332(a).
Plaintiff again moved to remand, observing that the mere
availability of punitive damages under the MHRA is
insufficient to support a finding that the amount in
controversy exceeds $75, 000. Walz v. FedEx Office &
Print Services, Inc., 2:12-CV-04188-NKL, 2012 WL
5386058, at *2 (W.D. Mo. Nov. 2, 2012). Defendant opposes
remand, contending that: (1) given the passage of time since
Plaintiff's separation, and assuming a trial date of
February 2020, his back pay ($15, 000 x 3.5 years = $52, 500)
plus two years of front pay ($30, 000) alone would satisfy
the threshold; (2) Plaintiff could receive emotional distress
damages of at least $50, 000; (3) Plaintiff could receive
punitive damages over $75, 000; and (3) Plaintiff seeks at
least $7, 500 in attorney fees. Plaintiff has not filed a
reply brief, and the time to do so has passed.
district courts have diversity jurisdiction over all civil
actions between citizens of different states in which the
amount in controversy exceeds $75, 000. 28 U.S.C. §
1332(a)(1). In removal cases, the district court reviews the
state court petition and the notice of removal to determine
whether it has jurisdiction. 28 U.S.C. §
1446(c)(2)(A)(ii); Ratermann v. Cellco P'ship,
No. 4:09 CV 126 DDN, 2009 WL 1139232, at *3 (E.D. Mo. Apr.
28, 2009). As the party invoking jurisdiction, the removing
defendant bears the burden of proving by a preponderance of
the evidence that the amount in controversy exceeds $75, 000.
28 U.S.C. § 1446(c)(2)(B); Bell v. Hershey Co.,
557 F.3d 953, 956 (8th Cir. 2009). “The preponderance
of the evidence standard requires a defendant to demonstrate
by sufficient proof that a plaintiff's verdict reasonably
may exceed the jurisdictional amount.” City of
Univ. City, Mo. v. AT & T Wireless Servs., Inc., 229
F.Supp.2d 927, 932 (E.D. Mo.2004). Under this standard, the
jurisdictional fact is not whether the damages are greater
than the requisite amount, but whether a fact finder
might legally conclude that they are. Bell,
557 F.3d. at 959 (emphasis original). Speculation and belief
that a plaintiff's damages exceed $75, 000 are
insufficient to meet the burden of proof. Biomedical Sys.
Corp. v. Crawford, 4:15CV1775 CDP, 2016 WL 147146, at *2
(E.D. Mo. Jan. 13, 2016). When a state court petition seeks
an unspecified amount of damages, the court must make a
factual inquiry into the amount in controversy. In doing so,
the court can consider the plaintiff's settlement offers.
Branch v. Wheaton Van Lines, Inc.,
4:14-CV-01735-AGF, 2014 WL 6461372, at *1-2 (E.D. Mo. Nov.
Pay and Front Pay
back pay is calculated based on the difference between what
the plaintiff would have earned had he remained employed and
what he actually earned, counting from the date of
termination until the date of reinstatement or judgment.
Clark v. Matthews Int'l Corp., 639 F.3d 391, 396
(8th Cir. 2011). Thus, according to Defendant's
calculation and assuming a trial date of February 2020,
Plaintiff may claim back pay of $52, 500 ($15, 000 x 3.5
years). Plaintiff makes no attempt to dispute this estimate.
reinstatement is the preferable remedy in MHRA claims, front
pay may be awarded where reinstatement is not feasible.
See Gilliland v. Missouri Athletic Club, 273 S.W.3d
516, 520 n. 3 (Mo. 2009); Sellers v. Mineta, 358
F.3d 1058, 1063-64 (8th Cir. 2004). Plaintiff does not seek
reinstatement, and the allegations in his petition suggest
that reinstatement would not be feasible, physically or
interpersonally. Defendant submits that Plaintiff could
reasonably recover an award of two years' salary (i.e.,
$30, 000). See, e.g., Browning v. President Riverboat
Casino-Missouri, Inc., 139 F.3d 631, 637 (8th Cir. 1998)
(affirming two years of front pay). Again, Plaintiff has made
no attempt to dispute this possibility.
uncontested calculations demonstrate that a fact finder might
legally conclude that Plaintiff's back and front pay
damages exceed $75, 000.