United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
matter is before the Court on Plaintiff's Motion to
Remand this case back to McCracken County Circuit Court, [DN
6.] Defendant Consolidated Resources Health Care Fund I, L.P.
(“Consolidated” or “Defendant”) filed
a response, [DN 8], and a supplemental response, [DN 10.]
Plaintiff did not reply, nor did it respond to
Defendant's supplemental response, and the time to do so
has passed. Fully briefed, this matter is now ripe for
adjudication. For the reasons explained below,
Plaintiff's motion is DENIED.
action arises out of Decedent Robert Klope's residence at
Parkview Nursing & Rehabilitation Center
(“Parkview”) in Paducah, Kentucky from December
23, 2016 until his death on August 16, 2016. [DN 1-1
(Complaint).] In this action, Darrell Klope, as Administrator
of the Estate of Robert Klope, alleges that Defendant
rendered inadequate care to Robert Klope during his stay at
Parkview, which led to an “accelerated deterioration of
his health and physical condition beyond that caused by the
normal aging process, including, his Wrongful Death.”
[Id. at 6.] Robert Klope's estate brought suit
against Defendant in McCracken County Circuit Court and filed
an Amended Complaint there on April 3, 2017, alleging
negligence and wrongful death, medical negligence, corporate
negligence, and violations of laws governing the rights of
residents in a long-term-care facility. [DN 1-1 at 6-14.]
Defendant removed the case to this Court on April 19, 2017.
[DN 1 (Notice of Removal).] Thereafter, Plaintiff filed the
instant motion, requesting that the Court remand this action
back to McCracken County Circuit Court. [DN 6 (Motion to
defendant may remove a state-court action only if the
plaintiff could have originally filed it in this Court.
See 28 U.S.C. § 1441(a); Everett v. Verizon
Wireless, Inc., 460 F.3d 818, 821 (6th Cir. 2006). As
the party seeking removal, the defendant bears the burden of
showing that the Court has such original jurisdiction.
See Vill. of Oakwood v. State Bank & Tr. Co.,
539 F.3d 373, 377 (6th Cir. 2008) (citing Ahearn v.
Charter Twp. of Bloomfield, 100 F.3d 451, 453- 54 (6th
Cir. 1996)). Any doubts as to the propriety of removal must
be resolved against the defendant. Jacada (Europe), Ltd.
v. Int'l Mktg. Strategies, Inc., 401 F.3d 701, 704
(6th Cir. 2005), abrogated on other grounds by Hall St.
Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008);
see also Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 108-09 (1941).
two kinds of this Court's original jurisdiction,
see 28 U.S.C. §§ 1331-1332, this case
concerns the one labeled “diversity, ”
[see DN 1 at 2-3]. The Court exercises such
jurisdiction in “all civil actions where the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs, and is between” parties who are
“citizens of different States.” 28 U.S.C. §
1332(a)(1). To make those determinations, the Court generally
looks at the complaint at the time of removal. Roddy v.
Grand Trunk W. R.R. Inc., 395 F.3d 318, 322 (6th Cir.
2005) (citing Ahearn, 100 F.3d at 453).
parties do not dispute that the “diversity of
citizenship” requirement of 28 U.S.C. § 1332(a)(1)
is satisfied in this case. Rather, the dispute centers on
whether the amount in controversy in the case exceeds $75,
000, as is required for diversity jurisdiction to exist. 28
U.S.C. § 1332(a). Ordinarily, the sum demanded “in
good faith” in an initial pleading is considered to be
accurate for purposes of determining the amount in
controversy. 28 U.S.C. § 1446(c)(2). Plaintiff's
complaint, however, does not demand a specific amount of
damages. [See DN 1-1.] Rather, Plaintiff simply
alleges that damages exceeded the state court's
jurisdictional threshold of $5, 000. [Id. at 9-10];
see Ky. Rev. Stat. § 23A.010(1); Ky. Rev. Stat.
§ 24A.120(1). Such a pleading practice is not unusual.
Many states, including Kentucky, prohibit plaintiffs from
demanding sum-certain damages in pleadings. See Ky.
R. Civ. P. 8.01(2). When that is the case, the removing party
must come forward with proof to establish, by a preponderance
of the evidence, that the amount-in-controversy requirement
is met. See 28 U.S.C. § 1446(c)(2)(B).
motion to remand, Plaintiff asserts that, “[i]n its
Notice of Removal, Defendant simply states that the amount in
controversy exceeds $75, 000 without providing a single shred
of evidence to support such a claim.” [DN 6 at 2.] In
response, Defendant argues that, at the time of removal, it
had a good faith belief “that based on Plaintiff's
demand for compensatory, statutory and punitive damages,
” along with Plaintiffs wrongful death claim,
“Plaintiffs claim for damages will exceed $75,
000.” [DN 8 at 1-2.] Plaintiff did not file a reply in
support of its motion to remand. Nor did Plaintiff, at any
time, file a post-removal stipulation clarifying that the
amount in controversy is less than $75, 000. See,
e.g., Tankersley v. Martinrea Heavy Stampings,
Inc., 33 F.Supp.3d 775, 780 (E.D. Ky. 2014) (“When
a post-removal stipulation is the first specific statement of
the alleged damages then it is considered a
clarification, rather than a reduction, and the case
may be remanded.”).
Defendant filed a supplemental response in opposition to
Plaintiff's motion to remand. [DN 10.] Therein, Defendant
asserts that, during settlement negotiations, Plaintiff's
counsel made, by email, a demand that far exceeds $75, 000.
Additionally, the email reflects that Defendant
counter-offered with a lesser amount, but an amount that also
exceeds $75, 000. Defendant attached the email communication,
under seal for confidentiality purposes, as an exhibit to its
supplemental response. [DN 12 (Filed Under Seal).]
question for the Court, then, is whether Defendant has shown,
by a “preponderance of the evidence, that the amount in
controversy exceeds” the $75, 000 threshold. 28 U.S.C.
§ 1446(c)(2)(B). The Sixth Circuit has explained that
“[a] settlement demand letter is ‘some
evidence' regarding the amount in controversy.”
Shupe v. Asplundh Tree Expert Co., 566 Fed.Appx.
476, 480-81 (6th Cir. 2014) (emphasis added) (quoting
Smith v. Phillips & Jordan, Inc., 2011 WL
250435, at *2 (E.D. Ky. January 24, 2011)). A settlement
demand letter is not necessarily dispositive evidence,
however. For instance, “[t]he demand might be
significantly more than the case is actually worth, ”
or, alternatively, “the demand might be less than the
case is actually worth.” Smith, 2011 WL
250435, at *2.
in this case, the email communication attached to
Defendant's supplemental response is particularly
probative where, not only is Plaintiff's demand
greater than $75, 000, but Defendant's
counter-offer, which is significantly lower, also
exceeds that amount. [See DN 12.] Accordingly, the
Court is satisfied that Defendant has shown, by a
preponderance of the evidence, that the amount in controversy
in this case exceeds the jurisdictional threshold for
diversity jurisdiction under 28 ...