United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff Kellan Tate's
motion to remand. Doc. 12. Defendant Charter Communications
LLC (“Charter”) opposes the motion. Plaintiff has
not filed a reply and the time to do so has passed. For the
following reasons, the Court concludes that it lacks subject
matter jurisdiction over this matter, and the case must be
remanded to state court.
Kellan Tate initially filed this employment discrimination
action in the Circuit Court of St. Louis County, Missouri,
alleging violations of the Missouri Human Rights Act, Mo.
Rev. Stat. §§ 213.010, et seq.
(“MHRA”) and the Missouri Service Letter Statute,
Mo. Rev. Stat. § 290.140. Plaintiff, an African-American
male, was hired by Charter as a customer service
representative in July of 2014 and promoted to communication
desk specialist in March of 2017. Plaintiff alleges he was
discriminated against on the basis of race and color when he
was terminated for failing to follow proper protocol with
respect to a customer complaint. Plaintiff alleges the
mistake was actually made by his Caucasian co-worker, Tara
Northcutt, and two of his supervisors admitted plaintiff was
not the employee responsible for the error. Ms. Northcutt was
neither discipled nor terminated from her employment with
Charter. Plaintiff seeks “actual and punitive damages,
back pay, front pay, compensation for loss of benefits,
interest on back pay, reasonable attorneys' fees, legal
and court costs, all available equitable remedies and other
damages in excess of $25, 000.00 and any and all additional
relief to which he may be entitled.” Doc. 4 at 6, 8, 9.
removed the action to this Court pursuant to 28 U.S.C.
§§ 1332(a), 1441(b), and 1446, asserting
jurisdiction on the basis of diversity of citizenship.
Plaintiff moves for remand, arguing that the Court lacks
jurisdiction because the amount in controversy does not
exceed $75, 000. In support of his motion, plaintiff submits
an affidavit declaring he does not seek a judgment in excess
of $75, 000 and agrees to limit his recovery to an amount
under $75, 000, which he supports with the fact that he
sought an initial demand for settlement in the amount of $28,
000. Doc. 13-1.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Any civil action brought in a state court
over which the district courts have original jurisdiction may
be removed to the proper district court. 28 U.S.C. §
1441(a). The propriety of removal to federal courts depends
on whether the claim is within the scope of the federal
court's subject matter jurisdiction. 28 U.S.C. §
1441(b). In the event the federal court determines that it
does not have subject-matter jurisdiction over a removed
action, it must remand the action to the state court where it
originated. 28 U.S.C. § 1447(c). Removal statutes are
strictly construed, In re Business Men's Assurance
Co. of America, 992 F.2d 181, 183 (8th Cir. 1993), and
all doubts about the propriety of removal must be resolved in
favor of remand. Central Iowa Power Co-op. v. Midwest
Indep. Transmission Sys. Operator, Inc., 561 F.3d 904,
912 (8th Cir. 2009).
party seeking removal and opposing remand has 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 Court must look to the plaintiff's pleadings
at the time of removal in determining whether removal was
proper. Pullman Co. v. Jenkins, 305 U.S. 534, 537-38
(1939). The basis for federal jurisdiction must be apparent
from the face of the plaintiff's properly pleaded
complaint. Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). The Court notes that under Eighth Circuit
precedent, Missouri state court petitions such as
plaintiff's, which seek an unspecified amount of damages,
do not establish damages in excess of the jurisdictional
amount and do not start the thirty-day time limit for
removal. See Knudson v. Systems Painters, Inc., 634
F.3d 968, 974 (8th Cir. 2011) (citing In re Willis,
228 F.3d 896, 897 (8th Cir. 2000) (per curiam)).
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.” Elliott v. Valvoline
(Kentucky), LLC, 2018 WL 4853033, at *2 (E.D. Mo. Oct.
5, 2018) (quoting Hughes v. Transwood, Inc., 2018 WL
1762719, at *2 (E.D. Mo. Apr. 12, 2018)). “Speculation
and belief that a plaintiff's damages exceed $75, 000 are
insufficient to meet the burden of proof.”
Biomedical Sys. Corp. v. Crawford, 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., 2014 WL 6461372, at *1-2 (E.D. Mo. Nov. 17, 2014).
Post-removal affidavits may also be considered to resolve
whether the district court has jurisdiction. Pudlowski v.
The St. Louis Rams, LLC, 829 F.3d 963 (8th Cir. 2016)
(per curiam). However, a post-removal affidavit will only be
considered to the extent it clarifies, rather than amends,
the original pleading. Armour v. Schneider Nat'l
Carriers, Inc., 2016 WL 5470466, at *2, n.2 (E.D. Mo.
Sept. 29, 2016).
removed this case based on diversity jurisdiction pursuant to
28 U.S.C. § 1332. Under that statute, complete diversity
of citizenship must exist between plaintiff and defendant,
and the amount in controversy must exceed $75, 000 exclusive
of interest and costs. In his state court petition, plaintiff
seeks unspecified damages “in excess of $25, 000.00 and
any and all additional relief to which he may be
entitled.” Doc. 4 at 6, 8, 9.
argues diversity jurisdiction is proper because plaintiff
seeks back pay and medical benefits. Defendant submitted an
affidavit from its Human Resources Manager stating that
plaintiff's hourly pay rate in 2018 was $17.62 per hour
and, on October 10, 2018, the date of his termination, he had
earned $35, 468.44 in pre-tax wages and received $7, 091.76
in medical insurance premium benefits. Doc. 23-1. Based on
these figures, defendant argues plaintiff's potential
damages for back pay and medical benefits from the date of
his discharge until an entry following trial, which defendant
assumes will be 18 months under the Court's standard
scheduling order, could result in a total award of $110,
202.68, not including punitive damages, front pay, interest
on back pay, reasonable attorneys' fees, and costs.
Supreme Court held in St. Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U.S. 283 (1938), that a plaintiff may
prevent removal by committing to accept less than the federal
jurisdictional amount. After a case has been removed to
federal court, however, it is too late for the plaintiff to
foreclose federal jurisdiction by agreeing to collect less
than the jurisdictional amount. Id. at 292-93. The
rule from St. Paul Mercury has “consistently
been applied to cases in which the petition at the time of
the removal expressly stated a claim in excess of the
jurisdictional amount, and therefore, removal jurisdiction
had already attached.” Halsne v. Liberty Mut.
Group, 40 F.Supp.2d 1087, 1090 (N.D. Iowa 1999).
petition in this case, in contrast, does not expressly state
a claim in excess of the jurisdictional amount. Further,
plaintiff filed a sworn statement that his damages do not
exceed and he will not accept an amount greater than $75,
This affidavit “limiting his damages, including
attorneys' fees, to less than $75, 000” serves to
“clarify the original pleading and establish to a legal
certainty that the claim is for less than the requisite
amount.” Elliott, 2018 WL 4853033, at *2
(quoting McGuire v. J.B. Hunt Transp., Inc., 2010 WL
2399550, at *4 (E.D. Mo. June 10, 2010) (“A binding
stipulation by affidavit or other binding declaration by
plaintiff filed in both state and federal court stating that
[plaintiff] does not seek, and will not ask for or accept an
amount in damages in excess of $75, 000.00, exclusive of