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Adkins v. Kroger Limited Partnership I

United States District Court, E.D. Kentucky, Central Division, Lexington

April 3, 2018

ANTHONY ADKINS, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny c. Reeves United States District Judge.

         This matter is pending for consideration of the following matters: (i) Plaintiff Anthony Adkins' motion to remand this action to the Scott Circuit Court, (ii) Defendant Kroger Limited Partnership I's (“Kroger”) motion for judgment on the pleadings, and (iii) Adkins' motion for leave to amend his Complaint. [Record Nos. 8, 10, 14] For the reasons that follow, Adkins' motion to remand will be denied, his motion for leave to amend his Complaint will be granted, and Kroger's motion for judgment on the pleadings will be denied as moot.

         I.

         Kroger terminated Adkins' employment on December 30, 2015. [Record No. 1-1, ¶ 9] Adkins filed this suit in state court on January 19, 2018, alleging that Kroger unlawfully discriminated against him based on his disability and failed to provide him with a reasonable accommodation in violation of the Kentucky Civil Rights Act, Kentucky Revised Statutes (“KRS”) § 344.010 et seq. [Id. ¶¶ 10-13] The Complaint does not state an amount in controversy, but alleges actual damages and attorney's fees under KRS 344.450, in excess of the minimum amount required to invoke the state court's jurisdiction. [See Id. ¶¶ 14-15]

         Kroger informed Adkins that it was contemplating filing a notice of removal on February 8, 2018, and requested a settlement demand. [Record No. 8-2, p. 3] On February 13, 2018, Adkins sent Kroger a settlement demand stating that: (i) he will not be pursuing a claim for front pay; (ii) his back pay damages equal no more than $35, 672.00; (iii) he is claiming emotional distress damages in the amount of $9, 000; and (iv) he expects that his attorney's fees will not exceed $20, 000. [Id. at 2] As a result, Adkins claimed that his total damages were $64, 672.00, and offered to settle the case for $55, 000.00. [Id.]

         Kroger removed the matter to this Court on February 23, 2018. It alleged that removal was proper under 28 U.S.C. § 1441(b), because the parties are diverse and the amount in controversy, more likely than not, exceeds $75, 000.00. [Record No. 1, ¶¶ 5-6] Kroger also alleged that removal was proper under 28 U.S.C. § 1441(a), because the plaintiff's claims necessarily require interpretation of the leave policy contained in the applicable Collective Bargaining Agreement (“CBA”). [Record No. 1, ¶ 7]

         Adkins opposes removal on the grounds that Kroger has not sufficiently established that the amount in controversy exceeds $75, 000.00, and that his claims were neither created by nor require interpretation of the CBA.[1]

         II.

         In general, the Court must conduct a “fair reading” of the Complaint to determine the amount in controversy. Hayes v. Equitable Energy Res. Co., 266 F.3d 560');">266 F.3d 560, 573 (6th Cir. 2001). However, where “[s]tate practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded, ” the defendant may assert the amount in controversy in its notice of removal. 28 U.S.C. § 1446(c)(2)(A)(ii); Ky. R. Civ. Pro. 8.01(2). “The party seeking removal bears the burden of demonstrating that the district court has original jurisdiction, ” and it “must set forth, in the notice of removal, specific facts supporting the assertion that the amount in controversy exceeds the amount required by statute.” Shupe v. Asplundh Tree Expert Co., 566 F. App'x 476, 481 (6th Cir. 2014) (quotations omitted). “A removal action is only proper based on the amount in controversy asserted in the removal notice ‘if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in 28 U.S.C. § 1332(a).'” Id. (quoting 28 U.S.C. § 1446(c)(2)(B)) (alterations adopted).

         Kroger's notice of removal is supported by an affidavit stating that Adkins worked an average of 27 hours per week and earned $11.20 per hour, resulting in a weekly sum of $302.40.[2" name="FN2" id= "FN2">2] [Record No. 1, ¶ 6; Record No. 1-2, ¶¶ 3-4] Because 112 weeks had elapsed between the date of Adkins' termination and the date of removal, Kroger alleged that the back pay damages on that date totaled $33, 868.80. [Record No. 1, ¶ 6] Further, Kroger noted that back pay may continue to accrue during the pendency of this action, and that Adkins may also recover a sum for lost employment benefits, emotional suffering, and attorney's fees. [Id.] In support of remand, Adkins relies primarily on his settlement demand indicating that his total damages were $64, 672.00. [Record No. 8-2]

         The Sixth Circuit has explained that:

[a] settlement demand letter is some evidence regarding the amount in controversy. The fact that [the] [p]laintiff attempted to settle the claim for less than the amount in controversy is not probative of the true amount because litigants often settle claims for less than the amount in controversy. An offer falling just below the jurisdictional threshold tends to suggest that the amount in controversy exceeds this threshold, especially since parties routinely offer and accept settlement amounts significantly below the total amount placed into controversy.

Shupe, 566 F. App'x at 480 (quotations and citations omitted; alterations adopted).

         Adkins' claim for actual damages may “include back pay, front pay, lost benefits, humiliation, emotional distress, embarrassment, and attorney's fees.” Id. (quotations and citations omitted). Although the Complaint does not specify whether Adkins intends to seek a back pay award that includes future accruals, a “fair reading” of Adkins' claim for compensatory and actual damages indicates that those damages would include lost wages up until the trial date. [See Record No. 1-1.] Further, although Adkins' settlement demand states that his “backpay damages equal no more than $35, 672.00, ” this is not an “unequivocal stipulation” that he will not seek damages beyond that amount. Shupe, 566 F. App'x at 481. Accordingly, the ...


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