United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Kay Jacina filed this action in the Jessamine County Circuit
Court on March 22, 2019. She alleged that she was injured
during a fall on the defendants' business premises.
[Record No. 1-3] The defendants removed the action to this
Court on June 4, 2019, alleging diversity jurisdiction under
28 U.S.C. § 1332. A week later, the plaintiff filed a
motion to remand the case to state court, arguing that the
defendants' notice of removal was untimely. [Record No.
8] However, the defendants have shown that they removed the
action within 30 days of receiving an “other
paper” from which the removability of the Complaint
could first be ascertained. Accordingly, the motion to remand
will be denied.
alleges that she stepped in a hole in the defendants'
parking lot, causing her to fall and sustain severe injuries
to her right arm. Consistent with Kentucky pleading rules,
the Complaint does not include a demand for a specific amount
of damages. See Ky. R. Civ. P. 8.01(2). The
defendants' attorney sent an e-mail message to the
plaintiff's attorney on April 10, 2019, asking, in part,
“[D]o you have an idea of total medical
expenses?” [Record No. 8- 1] Jacina's attorney
responded by e-mail the same day, reporting that then-current
medical expenses were $30, 856.91. Id.
defendants served Jacina with a request for admission on
April 30, 2019, asking her to admit that she would not seek
damages in excess of $75, 000.00, exclusive of interest and
costs. [Record No. 10-4] Jacina denied this request on May 8,
2019. [Record No. 10-5] Two days later, she served the
defendants with answers to interrogatories indicating that,
in addition to medical expenses, lost wages, and lost earning
potential, she would seek $400, 000.00 for pain and
suffering. [Record No. 10-6]
defendants filed their notice of removal on June 4, 2019,
alleging that the Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1332. Section 1332 requires that
the parties be completely diverse and that the amount in
controversy exceed $75, 000.00, exclusive of interest and
costs. Jacina does not dispute the defendants' allegation
that she is a citizen of Kentucky and the defendants are
citizens of Delaware and Arkansas. She also does not dispute
that the amount in controversy exceeds the statutory
threshold. Instead, she argues that the defendants'
notice of removal was untimely.
remove an action from state court to federal court, a
defendant must follow the procedures set forth in 28 U.S.C.
§ 1446. If the case stated by an initial pleading is not
removable, the defendant may file a notice of removal within
thirty days after receipt of “a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.” § 1446(b)(3). Jacina contends
that the action became removable on April 10, 2019, based on
her attorney's e-mail message stating that her medical
expenses were “around $30, 000.”
seeking removal must establish, by a preponderance of the
evidence, that the amount in controversy exceeds $75, 000.00,
exclusive of interest and costs. 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)). A defendant must come forward with
“competent proof showing that the amount-in-controversy
requirement is satisfied and speculation is not sufficient to
meet this burden.” Thompson v. Circle K
Midwest, LLC, No. 5: 09-341-JMH, 2011 WL 675486, at *1
(E.D. Ky. Feb. 16, 2011) (citing King v. Household Fin.
Corp. II, 593 F.Supp.2d 958, 959 (E.D Ky.
2009)). The e-mail from Jacina's attorney estimating
medical expenses at $30, 000.00 does not constitute competent
proof that the amount in controversy more than likely exceeds
$75, 000.00, exclusive of interest and costs.
when coupled with the estimated $30, 000.00 for medical
expenses, Jacina's nonspecific demands for other types of
damages did not push her Complaint over the line. It was not
until July 2019 that the defendants received information
indicating that the damages sought more like than not exceed
the statutory threshold. While some types of personal injury
cases, by their very nature, are sufficiently egregious to
establish that the amount in controversy is satisfied, this
is not one of those cases. See Burgett v. Troy-Bilt
LLC, No. 11-110-ART-2011 WL 4715176, at *2 (E.D. Ky.
Oct. 5, 2011) (collecting cases). The defendants properly
removed this action within 30 days of receiving an
“other paper” which established that the
amount-in-controversy exceeds this Court's threshold.
it is hereby
that the plaintiff's motion to remand ...