WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on plaintiff's Motion to Remand (doc. 8). The Motion has been briefed and is now ripe for disposition.
Plaintiff, Teddy Lambeth, brought this action against named defendants Peterbilt Motors Company and PACCAR, Inc. in the Circuit Court of Conecuh County, Alabama, on or about February 3, 2012. The Complaint described the underlying incident as follows: "On or about February 5, 2010, Plaintiff Teddy Lambeth . . . was attempting to enter the cab of the Peterbilt truck he was going to operate, and when he stepped onto the side step located on said truck, the step collapsed, causing him to fall and sustain a serious injury to his back." (Complaint, ¶ 13.) The Complaint divulges no specifics about this "serious injury," in terms of medical diagnosis, treatment plan, prognosis, permanent or transitory nature of injury, functional limitations, or quantification of medical expenses or lost wages.
Based on this incident, Lambeth asserts exclusively state-law causes of action against Peterbilt and PACCAR on theories of products liability/AEMLD, negligence and wantonness, failure to warn, and breach of express and implied warranties. In support of these theories, Lambeth alleges that Peterbilt and PACCAR designed, manufactured and installed the step system on the truck; that the step was defective and/or otherwise unsafe; that defendants were aware of the unsafe/defective condition; that defendants failed to provide adequate warnings to consumers about the step's defectiveness and propensity to fail; and so on. Lambeth seeks an award of unspecified compensatory and punitive damages.
On March 6, 2012, PACCAR filed a Notice of Removal (doc. 1), removing this action to this District Court pursuant to 28 U.S.C. §§ 1441 and 1446.
A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441 and, therefore, must demonstrate the existence of federal jurisdiction. See City of Vestavia Hills v. General Fidelity Ins. Co., ___ F.3d ___, 2012 WL 1232110, *2 n.1 (11
There being no federal question presented in the Complaint, PACCAR's sole jurisdictional hook for removal was diversity of citizenship. Under 28 U.S.C. § 1332(a), federal courts have original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. See Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11
As noted, the sole issue presented in Lambeth's Motion to Remand is whether the § 1332 amount-in-controversy requirement is satisfied.
The removing defendants bear the burden of proof on this issue. It is well-settled that "[i]f a plaintiff makes an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the . . . jurisdictional requirement." Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11
In the case at bar, PACCAR and Peterbilt have come forward with no additional evidence (beyond the pleadings themselves) demonstrating that the amount in controversy exceeds $75,000. That omission, by itself, is not fatal to removal. Again, the Eleventh Circuit has recognized that in some cases, "it may be `facially apparent' from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when the complaint does not claim a specific amount of damages." Roe, 613 F.3d at 1061 (citations and internal quotation marks omitted). This is the approach selected by defendants to carry their burden.
In the "facially apparent" method for proving amount in controversy, the removing defendant need not come forward with evidence beyond the text of the complaint. Instead, the Eleventh Circuit has instructed that "courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Roe, 613 F.3d at 1062. In that regard, courts are free to rely on "reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings," and "need not suspend reality or shelve common sense" in performing this analysis. Id. at 1061-62 (citations and internal quotation marks omitted). Nonetheless, the clear teaching of binding precedent is that courts must not resort to conjecture or speculation in deeming the amount-in-controversy requirement to be satisfied. See Pretka, 608 F.3d at 753-54 ("without facts or specific allegations, the amount in controversy could be divined only by looking at the stars — only through speculation — and that is impermissible") (citation and internal marks omitted).
The parties spar as to where the factual allegations of Lambeth's Complaint lie on the continuum between improper speculation and reasonable inference. After careful review of the briefs and the factual allegations of the Complaint (the sole source of information pertaining to the amount in controversy), the Court concludes that defendants have not met their burden of establishing the sufficiency of the amount in controversy. The Complaint indicates that Lambeth hurt his back while trying to enter the cab of a Peterbilt truck. While the back injury is characterized as "serious," nothing in the Complaint elaborates on the nature or severity of that injury, or otherwise lends substance or meaning to it. We simply do not know — or have any basis for inferring from the pleadings — anything about how severe, permanent, debilitating or painful the injury might be; how extensive, costly, or traumatic the course of treatment was, is or might be; or whether and to what extent the injury did, does or will constrain Lambeth's work or life activities.
As expected, defendants place tremendous weight on the Pretka / Roe guidance that courts are permitted to engage in deduction, inference and extrapolation, and to rely on their experience and common sense, in evaluating the amount in controversy. But in the context of this case, those techniques do not compensate for the dearth of facts about plaintiff's injury. Again, all that is known is that Lambeth says he hurt his back when a side step collapsed as he was climbing into a truck. Back injuries are not per se accompanied by an amount in controversy in excess of $75,000. Indeed, there are occupational back injuries as to which a low four-digit amount may be all that is legitimately in controversy. And there are occupational back injuries as to which a high six-digit amount may be in controversy after accounting for punitive damages. Where on this wide monetary spectrum of potential recoveries and amounts in controversy does Lambeth's back injury lie? The Court has no way of knowing, other than by guesswork and assumption. Certainly, the Complaint does not say. And defendants have done nothing more than point to the Complaint. All the reasonable inferences and extrapolation in the world cannot obscure that fundamental shortcoming in the record.
To be sure, in the Notice of Removal (doc. 1), PACCAR cited the Complaint's allegations that Lambeth's injury was "serious," that he "was made sick, sore and lame," that he was "bruised and contused," that he underwent unspecified "medical treatment and procedures," that he suffered "physical pain and mental anguish," and so on. But "serious" is such a general, subjective modifier that it reveals next to nothing about Lambeth's injury. In the eyes of the beholder (or a hypothetical plaintiff's attorney given to puffery in his pleadings), a hangnail might be considered "serious." And boilerplate language about Lambeth being sick and sore, having bruises, experiencing pain and suffering, and the like is devoid of substance in evaluating how extensive his injuries are, how disabling they might be, or how expansive the claimed compensatory damages are likely to be.
Nor does the Complaint's reference to punitive damages automatically equate to an amount in controversy in excess of $75,000. See, e.g., Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11
Defendants also argue that the Motion to Remand should be denied because any other ruling would allow plaintiffs like Lambeth to "pull a rabbit of [sic] a hat" (doc. 10, at 13) by playing fast and loose with the jurisdictional allegations in their pleadings. In particular, defendants bemoan the use of "tactics" in which plaintiff's counsel provides "vague" and "smoke-and-mirror" damages allegations in his complaint, only to force defendants into a "Hobson's Choice" with respect to removal. (Id.) As described by PACCAR, this dilemma is that defendants can either remove the case immediately under the "first paragraph" of 28 U.S.C. § 1446(b) (and run the risk of having the case remanded for lack of proof of the amount in controversy) or wait until discovery solidifies the amount in controversy and then remove the case under the "second paragraph" of § 1446(b) (and run the risk of having the case remanded on timeliness grounds on the theory that it could have been removed earlier based on the factual allegations of the original pleading).
These sentiments are an oft-heard refrain voiced by members of the defense bar who feel aggrieved by the manner in which Eleventh Circuit amount-in-controversy jurisprudence has developed in recent years. Their lament is understandable. It is true enough that defendants who wish to remove an action to federal court on diversity grounds may face daunting proof obstacles and difficult strategic choices, particularly as to whether to remove the case right away or to develop additional evidence on damages via discovery before pulling the removal trigger. Contrary to defendants' insinuation, however, Lambeth neither created this state of affairs nor engaged in impropriety, trickery or skullduggery in proceeding as he has. For better or worse, the harrowing Scylla-and-Charybdis scenario described by PACCAR is a natural, inevitable consequence of the interaction among liberal pleading rules that do not require a plaintiff to plead injuries and damages with specificity, strict federal removal statutes that place both the burden of proof and temporal constraints on removing defendants, and appellate evolution of a substantial, subjective gray area in which defense counsel cannot discern for sure whether the "facially apparent" criterion will be deemed to be satisfied in a particular case.
Finally, defendants point to jury verdicts in other cases and insist that "a review of Alabama trial court verdicts showcases that the amount in controversy in this case is greater than $75,000." (Doc. 10, at 20.) It does nothing of the sort. Without knowing what Lambeth's injuries are, it is nothing short of folly to liken his claims to those of another plaintiff in another case. There is no reasonable, principled basis for drawing an apples-to-apples comparison between Lambeth and any plaintiff in any of the other cases described by defendants. Without knowing the nature and severity of his injuries, any attempt to formulate an analogy between Lambeth and an injured plaintiff in another case who received damages greater than $75,000 is nothing more than gross speculation, guesswork and wishful thinking, none of which the Court can indulge.
Because it is not facially apparent from the Complaint that the amount-in-controversy prong of § 1332 is satisfied, the Court concludes that federal subject-matter jurisdiction is lacking and that removal was improper. Accordingly, plaintiff's Motion to Remand (doc. 8) is