GIVENS v. Publix Super Markets Inc et al, No. 1:2013cv00016 - Document 7 (M.D. Ga. 2013)
Court Description: ORDER granting 5 Motion to Remand the subject action to Dougherty County State Court. Ordered by Judge W. Louis Sands on 8/26/13 (wks)
Download PDF
<![CDATA[
GIVENS v. Publix Super Markets Inc et al Doc. 7 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION DOROTHY GIVENS, : : Plain tiff, : : v. : : PUBLIX SUPER MARKETS, INC., et al, : : Defen dan ts. : ___________________________ : CASE NO.: 1:13-CV-16 (WLS) ORD ER Before th e Court is Plain tiff’s Objection to Defen dan t’s Removal of Action to Federal Court an d Motion to Reman d the Subject Action to Dougherty Coun ty State Court. (Doc. 5.) Based on the followin g, Plain tiff’s Motion is GRAN TED . PROCED U RAL BACKGROU N D On J anuary 22, 20 13, Plain tiff Dorothy Given s filed a Ren ewal Complain t for Damages again st Defen dan t in State Court of Dougherty Coun ty, Georgia. (Doc. 1-2 at 1.) Plain tiff sought $ 42,0 22.30 for medical bills arisin g from Defen dan t’s alleged n egligen ce, “gen eral damages in an amount to be determ in ed by the en lighten ed conscien ce of a fair an d impartial jury [and] future m edical expenses in an unspecified amoun t.” (Doc. 5 at 2.) Defen dan t removed the case to federal court on J an uary 31, 20 13, allegin g diversity jurisdiction . (Doc. 1 at 2.) Plain tiff m oved to rem an d th e case February 20 , 20 13, claim in g that rem oval is im proper because the am oun t in con troversy does n ot con fer federal diversity jurisdiction . (Doc. 5 at 2.) Defen dan t respon ded to Plain tiff’s Motion to Reman d on March 14, 20 13. (Doc. 6.) Defen dan t’s 1 Dockets.Justia.com Response was filed within 21 days, plus additional three days, as provided by the Local Rules. See M.D. Ga. Local R. 6.3, 7.2; see also Fed. R. Civ. P. 6(d). D ISCU SSION A defen dan t may remove a case from state court with in thirty days from when the initial com plain t is received by the defendan t, or when the case oth erwise becom es on e over wh ich a federal court would have original jurisdiction . 28 U.S.C. §§ 1441, 1446(b)(1). Subject matter jurisdiction exists by virtue of federal question jurisdiction or diversity jurisdiction . 28 U.S.C. §§ 1331, 1332. Diversity jurisdiction exists where all plain tiffs are citizens of differen t states th an all defen dan ts, an d th e amoun t in controversy exceeds $ 75,0 0 0 . 28 U.S.C. § 1332. If at an y tim e during the course of the suit’s pen den cy th e court lacks jurisdiction , the case must be reman ded back to th e state court from wh ence it cam e. 28 U.S.C. § 1447(c). Rem oval statutes are strictly con strued “[b]ecause rem oval jurisdiction raises significan t federalism concerns.” Un iv. of S. Ala. v. Am . Tobacco Co., 168 F.3d 40 5, 411 (11th Cir. 1999) (citin g Sham rock Oil & Gas Corp. v. Sheets, 313 U.S. 10 0 , 10 8-0 9 (1941)). “[A]ll doubts about jurisdiction should be resolved in favor of rem an d to state court.” Id. (citing Burns v. W in dsor Ins. Co., 31 F.3d 10 92, 10 95 (11th Cir. 1994)). However, courts sh ould be m in dful that rem oval is n ot to be used to gain a tactical advan tage by avoidin g an in con venien t trial settin g. W eaver v. Miller Elec. Mfg. Co., In c., 616 F. Supp. 683, 687 (S.D. Ala. 198 5). “[J ]urisdictional facts are assessed at the tim e of rem oval.” Vega v. T-Mobile USA, In c., 564 F.3d 1256, 1268 n .12 (11th Cir. 20 0 9). A court m ay n ot en gage in “im perm issible speculation” as to the am ount in con troversy with out any evidence on th e value of the claims at issue in a case. Pretka v. Kolter City Plaza II, In c., 60 8 F.3d 744, 752 (11th Cir. 20 10 ); Low ery v. Ala. Pow er Co., 483 F.3d 1184, 1220 (11th Cir. 2 20 0 7). The party advocatin g removal may in troduce eviden ce demon stratin g th at jurisdiction al requiremen ts are satisfied. See Pretka at 774-75. Th e rem ovin g party h as th e burden to prove facts supportin g jurisdiction by a prepon deran ce of th e eviden ce. Un derw riters at Lloy d’s, Lon don v. Osting-Schw in n , 613 F.3d 10 79, 10 85-86 (11th Cir. 20 10 ) (citin g McCorm ick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 20 0 2)). In its Notice of Removal, Defen dan t alleges that this Court h as origin al jurisdiction because the parties are completely diverse an d the amoun t in con troversy meets the jurisdiction al requiremen t. (Doc. 1 at 2.) Defen dan t supports this assertion by attach in g Plain tiff’s complain t th at alleges medical expenses in the amoun t of $ 42,0 22.30 . (Doc. 1-2 at 8.) Defen dan t argues that this Court should use its “judicial experien ce an d common sen se” to conclude that the required amoun t in con troversy is satisfied. (Doc. 6 at 5.) Defen dan t does not in troduce any eviden ce to support its conten tion th at th e am ount in controversy exceeds $ 75,0 0 0 or articulate h ow the am oun t is m et. In her Motion to Reman d, Plain tiff argued that reman d is proper because Defen dan t did n ot meet its burden of demon stratin g by a prepon deran ce of the eviden ce th at the am ount of controversy exceeds $ 75,0 0 0 . (Doc. 5 at 2.) Plaintiff based h er argum ent on Low ery v. Alabam a Pow er Co., 483 F.3d 1184 (11th Cir. 20 0 7). In that case, th e defen dan t sought to remove based on the Class Action Fairn ess Act (“CAFA”) of 20 0 5. Id. at 1188. The plain tiff’s complain t did n ot specify the award amoun t sough t. Id. The defen dan t argued that the th reshold amoun t in con troversy was met because with th e number of plain tiffs in the suit, each plain tiff’s claim would on ly n eed to be $ 12,50 0 for the aggregate amoun t in con troversy to reach the $ 5 million required by CAFA. Id. at 1189. Th e defen dan t also claimed that recen t mass tort action s in Alabama h ad received 3 jury verdicts or settlemen ts in excess of $ 5 m illion . Id. The defendan t did not provide an y furth er eviden ce to support its position . Id. Th e Eleven th Circuit h eld th at the defen dan t failed to demon strate th at th e amoun t in con troversy exceeded th e jurisdiction al am oun t by a prepon deran ce of th e eviden ce. Id. at 1221. In its Respon se to Plain tiff’s Motion to Reman d, Defen dan t urges th e Court to disregard Low ery based on Pretka v. Kolter City Plaza II, In c., 60 8 F.3d 744 (11th Cir. 20 10 ). Low ery an d Pretka in volved removal in a case with subject matter jurisdiction based on CAFA. Pretka, 60 8 F.3d at 751; Low ery , 483 F.3d at 1187. The question in both cases was wh eth er the $ 5 m illion am ount in controversy requirem en t was satisfied. Pretka, 60 8 F.3d at 751; Low ery , 483 F.3d at 1189. The plaintiffs in Pretka alleged th e am ount in controversy to be “in excess of $ 15,0 0 0 .0 0 , exclusive of interest, costs an d attorn ey’s fees.” Pretka, 60 8 F.3d at 748 . The plain tiffs in Low ery alleged dam ages in an amoun t “in excess of the [state court’s $ 3,0 0 0 ] minimum jurisdiction al limit.” Low ery , 483 F.3d at 118 8 . Pretka distin guished rem ovals under th e first paragraph of 28 U.S.C. § 1446(b), which was at issue in Pretka, from rem ovals un der th e secon d paragraph of 28 U.S.C. § 1446(b), wh ich was at issue in Low ery . Pretka, 60 8 F.3d at 757-58. First paragraph rem oval deals with cases where the jurisdiction al requiremen ts for removal are m et when th e initial com plaint an d sum m ons are served, an d second paragraph rem oval deals with cases wh ere th e jurisdiction al requiremen ts are met at some later time. Id. Th e Pretka Court explicitly specified two portions of Low ery that are “arguably inconsistent with th e result reached in ” Pretka. Id. at 762. Both of th ese in con sistencies in volve the “receipt from the plain tiff” rule which holds that, where removal was n ot initially proper but later becom es proper due to chan ged circum stan ces, i.e. second 4 paragraph cases, “the defen dan t’s receipt of a documen t indicatin g th at th e case ‘h as becom e rem ovable’ open s a n ew 30 -day win dow for rem oval.” Id. at 760 . The con flict between Low ery an d Pretka 1 does n ot apply to th is case because timin g is n ot at issue. In stead, the on ly issue raised by the parties to th is case in volve wheth er th e am ount in controversy is satisfied. (See Docs. 5 at 2, 6 at 4.) Im portan tly, Low ery an d Pretka agree that th e propon en t of removal has the burden to demonstrate the am oun t in con troversy by a preponderan ce of the eviden ce, an d that burden m ay be m et by introducing eviden ce. See Pretka, 60 8 F.3d at 768; Low ery , 483 F.3d at 120 8 -0 9. In th is case, th e Court fin ds th at Defen dant h as failed to meet its burden of proving th at th e am ount in controversy exceeds $ 75,0 0 0 by a prepon derance of th e eviden ce. Plain tiff alleges m edical expen ses of on ly $ 42,0 22.30 , an d seeks gen eral damages an d damages associated with future medical bills. (Doc. 1-2 at 8.) Defen dan t argues that “th is Court can make reason able deductions, reason able in feren ces, an d reason able extrapolation s to determ in e whether the amoun t in con troversy is exceeded by th e claims alleged in Plain tiff Given s’ Complain t.” (Doc. 6 at 5.) Although it is true that th is Court is n ot required to “suspen d reality or shelve common sen se in determin in g wh ether th e face of a complain t … establishes the jurisdiction al amoun t,” Pretka, 60 8 F.3d at 759, th is Court is not permitted to speculate as to the amoun t in con troversy without the ben efit of eviden ce in support th ereof. Id. at 752. Sin ce Defendan t has offered no evidence that the am ount in controversy exceeds $ 75,0 0 0 , “There are two statem ents in the Low ery opinion with which we disagree and that are at least arguably inconsistent with the result we reach in this case. The first one is that the ‘receipt from the plaintiff’ rule is not lim ited to rem ovals m ade under the second paragraph of § 1446(b) but applies to first paragraph rem ovals as well… The second statem ent in the Low ery opinion with which we disagree and that is at least arguably inconsistent with the result we reach here is the suggestion that its ‘receipt from the plaintiff’ rule would apply to any case in which the com plaint seeks unliquidated dam ages.” Pretka v . Kolter City Plaza II, Inc., 60 8 F.3d 744, 762-764 (11th Cir. 20 10 ) (citation om itted). 1 5 Defen dan t h as failed to m eet its burden to prove sam e by a prepon deran ce of the eviden ce. Defen dan t also poin ts to Roe v. Michelin North Am erica, In c., 613 F.3d 10 58 (11th Cir. 20 10 ) to support its con ten tion that this Court should fin d that the amoun t in con troversy requirem en t is satisfied. (Doc. 6 at 3.) In Roe, the plain tiff did n ot allege a specific damages amoun t. Non eth eless, the court foun d that th e amoun t in con troversy exceeded $ 75,0 0 0 because the defendan t was allegedly respon sible for the loss of a human life due to con duct with a reckless or con scious disregard for th e safety of oth ers. Id. at 10 66. Roe cited two addition al cases to support its h oldin g, both of wh ich in volved plain tiffs that failed to allege a specific damages request. In Luckett v. Delta Airlin es, In c., 171 F.3d 295, 298 (5th Cir. 1999), th e court held that the amoun t in con troversy requiremen t was met despite the fact that n o specific damages request was made. The plain tiff alleged property damage, travel expen ses, an ambulan ce trip, six days in th e h ospital, pain an d suffering, hum iliation, an d a tem porary inability to do h ousework. Id. In Gebbia v. W al-Mart Stores, In c., 233 F.3d 8 8 0 , 8 83 (5th Cir. 20 0 0 ), the court h eld the amoun t was satisfied because the n ature of the “allegation s support[ed] a substan tially large[] mon etary basis to con fer removal jurisdiction .” Th e plain tiff h ad alleged medical expen ses, physical pain and sufferin g, men tal an guish and sufferin g, loss of en joym en t of life, loss of wages an d earn in g capacity, an d perman en t disability an d disfigurem en t. Id. Th e in stan t case is distinct from Roe, Luckett, an d Gebbia. Plain tiff alleges $ 42,0 22.30 in m edical expenses, an d general dam ages an d future m edical expenses “in an am oun t to be determ in ed by the en lightened conscien ce of a fair an d im partial jury.” (Doc. 1-2 at 8.) Th e com plain t does n ot indicate severe or perm an en t in juries, n or does 6 it allege reckless, intentional, or wanton conduct by Defendan t. As such , it is not facially obvious from th e com plain t that the am ount in controversy exceeds $ 75,0 0 0 . Alth ough furth er proceedings in this case m ay render a settlem en t or verdict in excess of $ 75,0 0 0 , th is Court h as n o eviden ce upon which to base such a fin din g. Furtherm ore, the Court does n ot fin d any suggestion th at Plain tiff is seekin g reman d to gain a tactical advan tage or litigate in a more favorable forum. Based on th e foregoin g, the Court fin ds that Defen dan t did n ot meet its burden of provin g the jurisdiction al bases for removal to federal court. Therefore, Plain tiff’s Objection to Defen dan t’s Removal of Action to Federal Court an d Motion to Reman d the Subject Action to Dougherty Coun ty State Court (Doc. 5) is GRAN TED . SO ORD ERED , this 26 th day of August, 20 13. / s / W . Lo u is San d s _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
