United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge
matter is before the Court on Plaintiff's Motion to
Remand (DN 4). Defendant has responded (DN 6), Plaintiff did
not reply, and the time for doing so has elapsed. Fully
briefed, this matter is ripe for adjudication. For the
reasons set forth below, Plaintiff's motion is GRANTED,
and this case is REMANDED to Jefferson Circuit Court and
STRICKEN from the Court's docket.
Randy Emmitt (“Plaintiff”) filed suit in
Jefferson Circuit Court on October 20, 2017 against his
former employer, Elmington Property Management, LLC
(“Defendant”), alleging retaliation, retaliatory
discharge, and reverse race discrimination, and seeking to
recover compensatory damages including but not limited to
past and future lost wages and benefits, statutory
attorneys' fees, costs and expenses, and statutory
interest. (Compl., DN 1-2). Plaintiff's state complaint
included the assertion: “A case and controversy exists
between the parties to this action and the amount in
controversy exceeds the jurisdictional minimum of this
Circuit Court but is less than $75, 000 inclusive of fees,
punitive damages and the fair value of any injunctive
relief.” (Compl. ¶ 7). Defendant timely removed to
this Court on the basis of diversity jurisdiction. (Notice
Removal, DN 1). The parties do not dispute that complete
diversity of citizenship exists, but contest the adequacy of
Plaintiff's post-removal stipulation of amount in
controversy. (Pl.'s Mot. Remand, DN 4; Stipulation, DN
4-1; Def.'s Resp. Pl.'s Mot. Remand, DN 6).
Plaintiff's post-removal stipulation includes the
following language: “Plaintiff will neither seek nor
accept any amount equal to or greater than seventy-five
thousand dollars ($75, 000), inclusive of punitive damages,
costs, attorneys' fees, and the fair market value of any
injunctive relief. This stipulation is intended to be
unequivocal and binding on Plaintiff, and it is
Plaintiff's intention that this Stipulation be used by
the Court to limit the amount of any award to him.”
STANDARD OF REVIEW
defendant may remove an action from state court to federal
court when the plaintiff could have brought the action in
federal court originally. 28 U.S.C. § 1441(a). Unlike
state trial courts, federal district courts are courts of
limited jurisdiction; they hold only that power authorized by
the U.S. Constitution and statute. Gunn v. Minton,
568 U.S. 251, 256 (2013) (citation omitted). Under 28 U.S.C.
§ 1332(a)(1), district courts have “diversity
jurisdiction” over civil cases between citizens of
different states where the amount in controversy exceeds $75,
000.00, exclusive of interest and costs. Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
(2005) (citation omitted). Federal jurisdiction in a
diversity case is determined at the time of removal.
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871
(6th Cir. 2000). In determining the amount in controversy for
jurisdictional purposes, “[t]he amount claimed by the
plaintiff usually controls, but the defendant can remove the
case under 28 U.S.C. § 1441(a) if it is shown that the
amount in controversy is ‘more likely than not'
above $75, 000.” Hampton v. Safeco Ins. Co. of
Am., 614 Fed.Appx. 321, 323 (6th Cir. 2015) (citation
omitted). The removing defendant bears the burden of
establishing the diversity jurisdiction requirements by a
preponderance of the evidence. Chapman v. Houston Welfare
Rights Org., 441 U.S. 600, 612 n.28 (1979) (citations
omitted); Smith v. Nationwide Prop. & Cas. Ins.
Co., 505 F.3d 401, 404 (6th Cir. 2007). “[B]ecause
lack of jurisdiction would make any decree in the case void
and the continuation of the litigation in federal court
futile, the removal statute should be strictly construed and
all doubts resolved in favor of remand.” Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549-50 (6th Cir. 2006)
(alteration in original) (internal quotation marks omitted)
Kentucky Rules of Civil Procedure prohibit plaintiffs from
articulating a specific amount that they seek to recover in
their complaints. See Ky. R. Civ. P. 8.01(2). These rules
further allow plaintiffs to recover more in damages than what
they seek in their complaints. See Ky. R. Civ. P. 54.03.
“Accordingly, even if a plaintiff could state the
damages he seeks in his complaint, this figure would not
necessarily limit the ultimate award-often leaving defendants
without a clear guidepost as to whether federal jurisdiction
might attach.” Jefferson v. Hyatt Corp., No.
3:14-CV-00601-TBR, 2015 U.S. Dist. LEXIS 46837, at *4 (W.D.
Ky. Apr. 9, 2015). When “the State practice either does
not permit demand for a specific sum or permits recovery of
damages in excess of the amount demanded, ” removal is
proper “if the district court finds, by the
preponderance of the evidence, that the amount in controversy
exceeds the amount specified in section 1332(a).” 28
U.S.C. § 1446(c)(2)(B).
Court has often held that plaintiffs are entitled to
stipulate that they do not seek, nor will they accept,
damages in an amount exceeding the diversity jurisdictional
minimum of Section 1332. See, e.g., Jefferson, 2015 U.S.
Dist. LEXIS 46837. Such post-removal stipulations are,
however, generally disfavored because if plaintiffs
“were able to defeat jurisdiction by way of a
post-removal stipulation, they could unfairly manipulate
proceedings merely because their federal case begins to look
unfavorable.” Gatlin v. Shoe Show, Inc., No.
3:14-CV-00446-TBR, 2014 U.S. Dist. LEXIS 98367, at *7-8 (W.D.
Ky. July 18, 2014) (internal quotation marks omitted)
(citations omitted). The Court will therefore uphold the
stipulation only where it is an “unequivocal statement
. . . limiting damages.” Egan v. Premier Scales
& Sys., 237 F.Supp.2d 774, 778 (W.D. Ky.
Court has examined the adequacy of amount-in-controversy
stipulations on numerous occasions, a comparison of which is
instructive to the Court's analysis. In Egan, the
plaintiff executed an affidavit stating that she “will
accept a sum of $74, 900 exclusive of interest and costs as a
judgment regardless of what any court finds in excess of that
amount.” Id. at 775. This Court found her
stipulation less than unequivocal, reasoning that she failed
to actually limit the amount of a potential judgment:
“To merely say that one will not accept money in excess
of a certain amount limits neither the judgment nor the
demand.” Id. at 778. Conversely, in another
case, the plaintiff stated in his motion to remand that he
“hereby certifies to the Court that he will not be
making a claim nor pursuing damages in amount equal to or
exceeding the sum of $75, 000.00.” Van Etten v.
Boston Sci. Corp., No. 3:09CV-442-H, 2009 U.S. Dist.
LEXIS 99079, at *2-3 (W.D. Ky. Oct. 22, 2009). There, this
Court found that, “[o]n its face, Plaintiff's
statement leaves no doubt or out. As such, it does meet the
Court's minimum requirement of being an unequivocal
stipulation” regarding amount in controversy.
Id.; accord Spence v. Centerplate, 931
F.Supp.2d 779, 780 (W.D. Ky. 2013) (finding unequivocal a
plaintiff's stipulation that read he “expressly
asserts . . . that Plaintiff will not seek or accept an award
of damages in excess of $74, 999.00 inclusive of punitive
damages, attorneys' fees, and the fair value of any
injunctive relief.” (emphasis in original)).
present stipulation more closely resembles the unequivocal
language used in Van Etten and Spence. Defendant's
Response ignores the stipulation's language referring to
“Plaintiff's intention that this Stipulation be
used by the Court to limit the amount of any award to
Kentucky federal and state courts have recognized that
plaintiffs are prevented from later taking an inconsistent
position to one previously advocated, i.e., following a
post-removal stipulation of damages. See, e.g., Spence, 931
F.Supp. at 782; Tankersley v. Marthinrea Heavy Stampings,
Inc., 33 F.Supp.3d 775, 780-81 (E.D. Ky. 2014);
Colston Inv. Co. v. Home Supply Co., 74 S.W.3d 759,
763 (Ky. App. 2001) (quoting Reynolds v. Comm'r,
871 F.2d 469, 472-73 (6th Cir. 1988)). “While an
unscrupulous party might seek to abuse the process, this
court is placing absolute reliance upon counsel's
statement limiting damages as an essential component of our
order of remand.” Jester v. Kenco Logistics Servs.,
LLC, No. 3:13-CV-385-S, 2013 U.S. Dist. LEXIS 163437, at
*5 (W.D. Ky. Nov. 15, 2013). Plaintiff is admonished that, as
this Court has previously noted, any attempt to void the
pledge memorialized in his stipulation may be considered
sanctionable conduct and may justify re-removal. See, e.g.,
Jefferson, 2015 U.S. Dist. LEXIS 46837, at *12; Jester, 2013
U.S. Dist. LEXIS 163437, at *5-6; Van Etten, 2009 U.S. Dist.
LEXIS 99079, at *3-4.
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (DN 4)
is GRANTED. This case is REMANDED to Jefferson Circuit ...