United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
E. WIER, UNITED STATES DISTRICT JUDGE
Court confronts Plaintiff's remand effort. DE #6. Finding
the jurisdictional requirements met, the Court denies remand
and retains the case federally.
allegations in this personal injury action are
straightforward. Plaintiff Autumn Peichoto avers that she was
injured in June 2018, while refueling her vehicle at a
Speedway gas station. DE #1-1 at 2 (Complaint), at ¶
Plaintiff maintains that a faulty pump hose sprayed fuel in
her eye, causing her “to sustain personal injuries of a
permanent nature[.]” Id., at ¶¶ 10,
13. The Complaint, pursuing a negligence theory, alleges that
Speedway breached its duty of care to properly maintain the
premises and avoid dangerous conditions on its property,
resulting in Peichoto's harm. Id. ¶¶
9, 11-12. Plaintiff seeks several relief categories,
including monetary damages for (1) permanent mental and
physical pain and suffering; (2) permanent impairment of her
ability to labor and earn; (3) all hospital, medical, and
rehabilitation expenses; and (4) “loss of ability to
lead and enjoy a normal life[.]” Id. at ¶
filed this case in the Fayette Circuit Court in January 2019,
and Speedway removed to this Court just over a month later.
DE #1 (Notice of Removal). Defendant invokes the Court's
diversity jurisdiction, alleging that Plaintiff is a Kentucky
citizen and Speedway (an LLC) is foundationally a citizen of
Ohio and Delaware. See Id. at ¶ 2-4. Speedway
further alleges- based on the Complaint's allegations and
sought damages, and the fact that Peichoto, given ongoing
medical treatment and expenses, withdrew her previous
stipulation that the case was worth less than the
jurisdictional minimum-that more than $75, 000 is here in
controversy. Id. at ¶¶ 5-6. Plaintiff has
moved to remand, disputing the amount in controversy
requirement. DE #6. Defendant responded, opposing remand,
see DE #9, and Plaintiff did not reply.
is proper if the plaintiff could have originally brought the
case in federal court. 28 U.S.C. § 1441(a). Diversity
jurisdiction-the removal basis here-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
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 a case is removable. See 28 U.S.C.
§ 1446(b)(3) (“[I]f the case stated by the initial
pleading is not removable, a notice of removal may be filed
within thirty days after receipt by the defendant . . . 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.”). 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 definition of “other paper” for
§ 1446(b)(3) purposes, though, “is broad and may
include any formal or informal communication received by a
defendant.” Hiser v. Seay, No. 5:14-CV-170,
2014 WL 6885433, at *2 (W.D. Ky. Dec. 5, 2014). Indeed,
“[v]irtually every court that has considered the issue
has held that settlement demand letters and other
correspondence between parties may constitute ‘other
paper.'” Mathes v. Burns, No.
3:19-CV-00751, 2019 WL 5394310, at *5 (M.D. Tenn. Oct. 22,
2019) (collecting cases); see also Pope v. Everest
Nat'l Life Ins. Co., No. 19-CV-10895, 2019 WL
2366590, at *3 (E.D. Mich. June 5, 2019) (considering a
medical bill an “other paper” within the meaning
of § 1446).
Court evaluates any 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)). Always, courts must strictly construe removal
statutes and resolve 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). However, the removal standard “does not place
upon the defendant the daunting burden of proving, to a legal
certainty, that the plaintiff's damages are not less than
the amount in controversy requirement.” Hayes,
266 F.3d at 572 (citation omitted). Rather, per the
applicable preponderance standard, the “removing
defendant must show that it is ‘more likely than
not' that the plaintiff's claims meet the amount in
controversy requirement. Rogers, 230 F.3d at 871
Amount in Controversy Analysis
“other paper” from which Speedway first
ascertained removability (in light of the Complaint's
allegations and relief demands, as well as prior settlement
discussions and exchanged medical expense documentation) was
email correspondence from Plaintiff's counsel. Peichoto,
through counsel, withdrew a prior settlement
offer and, citing expanding treatment and
mounting medical expenses, retracted her stipulation that the
case was worth less than the jurisdictional minimum:
I spoke with my client last night and she was just referred
to an ophthalmologist who has diagnosed her as having
blepharitis (an inflammation of the eyelid) and placed on her
a four (4) month course of antibiotics with alternative
treatment modalities already being discussed.
As this appears to be something that will be continuing, I
must withdraw our current demand and will need to move
forward with litigation. Also, with this new information and
her treatment progressing more than initially anticipated, I
can no longer stipulate that the case will be less than $75,
000.00; I just don't know at this point because she is
DE #1-2 at 2. Alone, a refusal to stipulate to case value
below the jurisdictional minimum cannot satisfy the removal
burden. See, e.g., 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); Stratton v.
Konecranes, Inc., No. 5:10-CV-66-KSF, 2010 WL 2178544,
at *3 (E.D. Ky. May 28, 2010) (“A refusal to stipulate,
by itself, would not justify removal[.]”); Davis v.
BASF Corp., No. 03-CV-40198, 2003 WL 23018906, at *2
(E.D. Mich. Nov. 24, 2003) (“[I]f a defendant asks a
plaintiff to stipulate that the damages are below the
jurisdictional amount [and] if the plaintiff refuses to
stipulate, the case cannot be removed based solely on this
refusal.”) (citation omitted). A refusal to stipulate