Motionto remand


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Motionto remand

  1. 1. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION PHILLIP LEE WALTERS, ) ) ) Plaintiffs, ) CASE NO. 5:09-CV-00 ) vs. ) ) SAMUEL PATTERS AND KEEN ) TRANSPORT, INC. ) Defendants. ) PLAINTIFF PHILLIP LEE WALTERS' MOTION TO REMAND Plaintiff Phillip Lee Walters, pursuant to 28 U.S.C. § 1447(c), moves this Court to remand the above-styled matter to the State Court of Bibb County, Georgia. The absence of removal jurisdiction mandates the requested remand. As specific grounds, Plaintiff states: Complaint 1. This is a case sounding in negligence. On August 21, 2009 in the State Court of Bibb County, Georgia, Plaintiff instituted this lawsuit by filing a Complaint. The named Defendants are those listed in the caption, Samuel Patterson and Keen Transport, Inc. Specifically, Plaintiff alleges that his vehicle was struck by a truck driven by Defendant Patterson.
  2. 2. 2. Contrary to Defendants' assertions in Paragraph 7 of the Notice of Removal, Plaintiff has not alleged in any paragraph of his Complaint that he seeks “sums in excess of $75,000, exclusive of interest and costs.” (Defendants' Notice of Removal, Paragraph 7). Notice of Removal 3. Defendants filed their Notice of Removal with this Court in a timely manner, doing so on September 29, 2009. 4. As the sole source of federal subject-matter jurisdiction, Defendants referenced only diversity-of- citizenship jurisdiction pursuant to 28 U.S.C. § 1322 (Notice of Removal Paras. 4, 5, and 6), and a claimed amount in controversy (Notice of Removal, Paras. 7 and 8). General Legal Principles 5. Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). 6. Removal statutes must be strictly construed because Congressional intent in enacting removal legislation was to 2
  3. 3. restrict removal jurisdiction. Shamrock Oil & Gas Corp. v. Streets, 313 U.S. 100, 108, 61 S. Ct. 868, 85 L. Ed. 2D 1214 (1921). 7. “A court must strictly construe the requirements of the removal statute, as removal constitutes an infringement on state sovereignty.” Newman v. Spectrum Stores, Inc., 109 F. Supp. 2d 1342, 1344 (M.D. Ala. 2000). “Failure to comply with the requirements of the removal statute generally constitutes adequate grounds for remand.” 109 F. Supp. 2d at 1345. 8. “Statutes that limit federal jurisdiction are always strictly construed against the removing party, and there is no shame in a plaintiff’s insistence on full and complete compliance with them by a defendant who wants to flee to federal court.” Kisor v. Collins, 338 F. Supp. 2d 1279, 1281 (N.D. Ala. 2004). 9. The removing party bears the burden of demonstrating the existence of federal jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S. Ct. 35, 660 L. Ed. 2d 144 (1921); Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). Specific Jurisdictional-Threshold-Amount Principles 3
  4. 4. 10. A district court “shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a). There can be no diversity-of-citizenship-based subject-matter jurisdiction absent satisfaction of the $75,000 threshold amount. 11. In its removal pleading, Defendants made no mention of the opinion, Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), cert. denied, sum nom, Hanna Steel Corp. v. Lowery, ___ U.S. ___, 128 S. Ct. 2877 (2008), and its impact on the issue of a removing party’s satisfying the jurisdictional- threshold-amount requirement. Defendants have made no mention of the numerous opinions that have applied Lowery in factual scenarios similar to that in the present matter and granted motions to remand due to a failure to satisfy the jurisdictional-threshold-amount requirement. 12. In Beasley v. Fred’s Inc., Civil Action No. 08-0120- WS-C, 2008 WL 899249 (S.D. Ala. Mar. 31, 2008), in an Alabama state court, Beasley sued Fred’s after she fell while shopping in a Fred’s store and injured her back and both knees. Beasley sought compensatory damages in connection with a surgery on her left knee and for her pain and suffering and punitive damages. In her complaint, Beasley demanded no specified amount of 4
  5. 5. damages. While Beasley did not file a motion to remand, District Judge Steele remanded the matter because he independently found a failure to satisfy the jurisdictional- threshold-amount requirement. District Judge Steele stated that “[t]he amount in controversy [was] not apparent from the face of the complaint, because there [was] no way to determine from the complaint whether the plaintiff has been injured so badly as to make an award of over $75,000 more likely than not.” 2008 WL 899249 at *1. He wrote: Moreover, “[a] conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant’s burden.” Williams [v. Best Buy Co.], 269 F.3d [1316,] 1319-20 [(11th Cir. 2001)]. “[U]nsupported assumptions” are likewise “inadequate.” Leonard v. Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002). The standard for removal is preponderance of the evidence and, when the removing defendant relies only on representations without presenting evidence, it cannot meet its burden of supporting removal. Lowery v. Alabama Power Co., 483 F.3d 1184, 1210-1211 (11th Cir. 2007). 2008 WL 899249 at *2. 13. In Williamson v. Home Depot USA, Inc., No. 07-61643- CIV, 2008 WL 2262044 (S.D. Fla. 30, 2008), Williamson was injured while shopping at a Home Depot store. Williamson 5
  6. 6. commenced a lawsuit in a Florida state court, Home Depot removed the matter and Williamson filed a motion to remand. Home Depot unsuccessfully argued that it was facially apparent from the complaint that the amount in controversy exceeded $75,000 because Williamson asserted that he sustained serious injuries to his dominant hand. The district court wrote: To show that it is facially apparent that the damages exceed the jurisdictional minimum, it is insufficient to rely on the severity of the injuries alleged. Beal v. La Quinta Inns., Inc., No. 3:06-CV-966-J-33 TEM, 2007 WL 1577826, at *2 (M.D. Fla. May 31, 2007)(finding it insufficient to rely upon on the severity of the damages claimed to satisfy burden of proving jurisdiction by a preponderance of the evidence). ... 2008 WL 2262044 at *2. Argument 15. Defendants do not mention the Lowery opinion or any recent germane opinions applying the principles announced in Lowery. 16. Defendants wrongfully assume that the jurisdictional- threshold-amount requirement is met because a plaintiff alleges personal injuries. Since the issuance of the Lowery opinion, throughout the Eleventh Circuit, assumptions are insufficient to satisfy the burden imposed on a removing defendant to satisfy the jurisdictional-threshold-amount requirement. 6
  7. 7. 17. Defendants truly ask this Court to speculate as to some satisfaction of the jurisdiction-threshold-amount requirement because the Plaintiff may ask a jury to award him some measure of damages. 18. Defendants have chosen to ignore Lowery; this Court may not. Defendants have made no effort to follow the principles announced in Lowery and applied in post-Lowery opinions. WHEREFORE,Plaintiff moves this Court to enter an order remanding this matter of the State Court of Bibb County, Georgia. DATED this _20th day of October, 2009. s/ Mark Zamora GA BAR 784239 MARK ZAMORA, ESQUIRE POST OFFICE BOX 660216 ATLANTA, GA 30366 T: 404/451-7781 F: 404/506-9223 Email: CERTIFICATE OF SERVICE I hereby certify that on October 20, 2009 I electronically filed PLAINTIFF'S MOTION TO REMAND with the Clerk of Court using the CM/ECF system which will automatically send email notification to the following attorneys of record: GRANT SMITH, ESQ. and KIMBERLY DEWITT, ESQ., Dennis, Corry, Porter and Smith, 7
  8. 8. LLP, 3535 Piedmont Road, NE, 14 Piedmont Center, Suite 900, Atlanta, GA 30305. I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: None. s/ Mark Zamora GA BAR 784239 MARK ZAMORA, ESQUIRE POST OFFICE BOX 660216 ATLANTA, GA 30366 T: 404/451-7781 F: 404/506-9223 Email: 8