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Gentry v. CF Kentucky Owner LLC

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

June 4, 2019

RHONDA GENTRY, Plaintiff,
v.
CF KENTUCKY OWNER LLC and FRIEDMAN MANAGEMENT COMPANY, Defendants.

          OPINION AND ORDER

          ROBERT E. WIER, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Rhonda Gentry's Motion to Remand this personal injury action to the Fayette Circuit Court. DE #13 (Motion). Defendants CF Kentucky Owner LLC and Friedman Management Company (“CF Kentucky” and “Friedman”; collectively, “Defendants”) opposed (DE #17), and Plaintiff replied (DE #18). Because Defendants have pointed to multiple pieces of evidence that, when considered in conjunction, adequately establish the requisite amount in controversy, the Court declines to remand the case.

         1. Relevant Background

         Defendants own and manage apartment complexes in Kentucky. DE #1-2 at 6, ¶ 3. Plaintiff (whose employer provides in-home care services) was visiting a patient of her employer at one such complex-the Cedarwood Apartments-when she allegedly slipped and fell on an icy patch, injuring herself. Id. at 7, ¶¶ 8-10. Blaming CF Kentucky and Friedman for lax upkeep of the property, Plaintiff sued in the Fayette Circuit for personal injury damages. Defendants removed the case (originally filed on December 21, 2017, see Id. at 11) to this Court in September 2018 based on diversity jurisdiction. DE #1 (Notice of Removal). Just over a month later, Defendants (unopposed) sought leave to add their snow and ice removal vendor as a third-party defendant, which this Court granted. DE ##8, 14. On October 30, 2018, Plaintiff filed her motion to remand, arguing failure of the amount in controversy requirement.[1] DE #13.

         2. Removal Standard

         Removal is proper if the plaintiff could have originally brought the case in federal court. 28 U.S.C. § 1441(a). Defendants based removal exclusively on diversity jurisdiction, which exists “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). The amount in controversy must exceed the jurisdictional minimum at the time of removal. See Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000); see also Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007). The burden rests on the removing party to demonstrate the amount in controversy requirement by a preponderance of the evidence. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993), abrogated on other grounds by Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010); see also Northup Props., Inc. v. Chesapeake Appalachia, LLC, 567 F.3d 767, 769- 70 (6th Cir. 2009) (“The burden is on [the removing party] to show by a preponderance of the evidence that the allegations in the complaint at the time of removal satisfy the amount-in-controversy requirement.”).

         In matters removed from Kentucky state courts, the amount in controversy is frequently unclear from the face of a complaint because the Kentucky Civil Rules bar plaintiffs from specifying the amount of unliquidated damages they seek. See Ky. R. Civ. P. 8.01(2). Parties thus often must engage in pre-removal discovery before a defendant can ascertain that the amount in controversy exceeds $75, 000, exclusive of interest and costs, and successfully remove the case. A removing party may satisfy the requirement via “competent proof” of the at-issue amount, see Cleveland Hous. Renewal Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 559 (6th Cir. 2010), which “can include affidavits, documents, or interrogatories” obtained during pre-removal discovery. Bishop v. Tennessee Gas Pipeline, LLC, No. 5:17-CV-00424-JMH, 2018 WL 4686416, at *2 (E.D. Ky. Sept. 27, 2018). The Court evaluates such proof against the backdrop of “a ‘fair reading' of the allegations in the complaint.” Shupe v. Asplundh Tree Expert Co., 566 Fed.Appx. 476, 478 (6th Cir. 2014) (quoting Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 573 (6th Cir. 2001)). Where uncertainty clouds the propriety of removal, courts must strictly construe removal statutes and resolve all doubts as to jurisdiction in favor of remand. See, e.g., Brierly, v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999).

         3. Amount in Controversy Analysis

         Indeed, here, Plaintiff did not specify any amount of damages in her Complaint. The Complaint merely alleges that Gentry seeks damages in excess of the Fayette Circuit's jurisdictional minimum, DE #1-2 ¶ 5, and includes a general list of types of damages she seeks, see Id. at ¶ 14 (noting that damages “include[e], but [are] not specifically limited to, medical expenses, lost wages, permanent impairment to earn a living, pain, suffering, and emotional anguish, all past and future”). The Complaint does not elaborate further on damages sought. Defendants thus proffer two pieces of evidence obtained in pre-removal discovery to establish a sufficient amount in controversy. First, they cite a response to their request for admission (DE #1-3), which states as follows:

REQUEST NO. 1: Admit that the total amount of damages you are seeking in good faith in this matter, exclusive of interest and costs, is less than or equal to $75, 000.
RESPONSE: Objection. This request is premature as the plaintiff is still seeking treatment for her injuries and it cannot be determined what her total damages are at this stage of the litigation. Furthermore, the plaintiff is also a claimant in a pending workers compensation claim, which to date has not been resolved. Pursuant to operation of KRS Ch. 342 et seq., the resolution of the workers compensation claim through settlement or adjudication may significantly affect the damages in the instant case. Thus, after making a reasonable inquiry, the information which is known or readily attainable by the Plaintiff at this point is insufficient to enable her to admit or deny this request.

         The timing matters: Gentry fell in January 2017 and filed suit in December 2017. The response at issue happened in August 2018, a month before removal.[2] Second, Defendants cite Plaintiff's own (inverted) request for admission, which states as follows: “Admit that the Plaintiff's total damages related to the incident giving rise to this lawsuit, including past and future medical expenses, lost wages, lost power to labor and pain and suffering exceed Seventy-Five Thousand Dollars ($75, 000).” See DE #1-4. While denying that Plaintiff was entitled to any damages, Defendants stated that they had insufficient information to answer this request fully; they further stated their belief that Plaintiff sought more than $75, 000 based on the request itself and Plaintiff's response to Defendants' former request for admission. See DE #13-1 at 2-3. Defendants argue that Plaintiff's request for admission demonstrates that she herself valued the litigation in an amount exceeding the requisite amount.

         In addition to these pieces of evidence, Defendants contend that Plaintiff's admission that she had incurred approximately $26, 000 in medical expenses at the time she moved, in October 2018, for remand (see DE #13-1 at 6) provides context to value her claim at the time of removal.[3]Combined with the other categories of damages Plaintiff seeks, Defendants reason that it is more likely than not that the amount in controversy exceeds the threshold. As Defendants point out, other courts have found that medical expenses can meter related damages such as pain and suffering. See, e.g., Fisher v. May, No. 3:11-CV-00592, 2012 WL 1964564, at *2 (W.D. Ky. May 31, 2012) (applying a 5:1 multiplier to medical expenses to calculate potential pain and suffering values); see also Fenton v. Speedway, LLC, No. 5:13-CV-063-DCR, 2013 WL 2422877, at *2 (E.D. Ky. June 3, 2013) (“Based on the amount of past medical expenses claimed [in an amount exceeding $27, 000], and considering a reasonable multiplier for allegations of pain and suffering, it is reasonable to assume that [the plaintiff] will seek damages exceeding $75, 000.00, exclusive of interest and costs.”).[4]

         While none of these things, alone, carries Defendants' burden, they, with the Complaint's damage categories, collectively surpass the jurisdictional threshold. The first piece of evidence, without more, would be insufficient to support federal subject matter jurisdiction. See Lobley v. Guebert, No. 5:16-CV-202-TBR, 2017 WL 1091796, at *1 (W.D. Ky. Mar. 22, 2017) (holding that a response refusing to admit or deny that the amount in controversy exceeded the jurisdictional minimum, standing alone, was insufficient); cf. Miller v. Malik, No. CIV. 11-74-ART, 2011 WL 2968428, at *2 (E.D. Ky. July 20, 2011) (viewing the plaintiff's refusal to deny the defendant's request for admission that damages exceeded $75, 000 as “at least some evidence that her damages [we]re more than that amount” and, coupled with other evidence, as satisfying the amount in controversy). As in Miller, however, Plaintiff's refusal ...


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