REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

This case, filed in the Circuit Court of Mobile County, Alabama on March 20, 2013, was removed to this Court by Defendant Mid-Continent Casualty Company ("MCC"), pursuant to 28 U.S.C. § 1446(b)(3), on February 5, 2014. (See Doc. 1, notice of removal.) Plaintiff American Medical Electronics, LLC ("AME") timely moved to remand (see Doc. 5), on February 17, 2014, see 28 U.S.C. § 1447(c). That motion has been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. MCC has now filed its opposition to the motion (see Doc. 14), and AME has now filed a reply in support of remand (see Doc. 17).

After consideration of the pleadings, and for the reasons explained herein, it is RECOMMENDED that the motion to remand (Doc. 5) be GRANTED and that this case be REMANDED to Mobile County Circuit Court, from whence it came. It is further RECOMMENDED that AME's request for attorney's fees incurred as a result of removal be DENIED.

I. Applicable Background

Briefly, this matter, filed by the insured, AME, is an action for declaratory judgment and breach of contract and concerns (1) two insurance policies written by MCC, and (2) an accident that occurred in December 2011, in Aiken, South Carolina. AME filed suit in state court on March 20, 2013. MCC moved to dismiss the lawsuit on April 18, 2013, and its motion was denied on November 1, 2013. Thereafter, in the course of discovery, AME responded to MCC-propounded requests for admissions ("RFAs") on January 6, 2014. Those responses triggered MCC's removal of this action on February 5, 2014.

II. Analysis

A. Jurisdiction Generally

"Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court." Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000); accord City of Vestavia Hills v. General Fid. Ins. Co., 676 F.3d 1310, 1313 n.1 (11th Cir. 2012). And a federal court may exercise diversity jurisdiction over all civil actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens of different states. 28 U.S.C. § 1332(a)(1). Nevertheless, "[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court." University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411; cf. D.M.C. Enters. Inc. v. Best McAllister, LLC, Civil Action No. 10-00153-CB-N, 2010 WL 3039477, at *2 (S.D. Ala. Aug. 4, 2010) ("Because it is conferred by statute, the right of removal is strictly construed to limit federal jurisdiction." (citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996))); White v. Wells Fargo Home Mortgage, Civil Action No. 1:11-cv-408-MHT, 2011 WL 3666613, at *3 (M.D. Ala. Aug. 22, 2011) (a federal court is "obligat[ed] to narrowly construe removal statutes"; this obligation necessarily "requires that uncertainties be `resolved in favor of remand'" (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994))).

MCC must establish the propriety of removal under § 1441 and, therefore, "bears the burden of establishing the existence of federal jurisdiction[,]" Brown v. Kabco Builders, Inc., Civil Action 07-0099-WS-C, 2007 WL 841690, at *1 (S.D. Ala. Mar. 15, 2007) (citing Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002)), which requires that MCC both establish complete diversity—that all plaintiffs are diverse from all defendants, see Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998); accord Auto-Owners Ins. Co. v. Great Am. Ins. Co., 479 Fed. App'x 228, 232 n.3 (11th Cir. June 21, 2012) (per curiam)—and show that the amount in controversy more likely than not exceeds the $75,000 jurisdictional requirement, see Fitzgerald v. Besam Automated Entrance Sys., 282 F.Supp.2d 1309, 1314 (S.D. Ala. 2003).

B. Complete Diversity

MCC has previously established, through competent proof,1 that there is complete diversity. (See generally Docs. 4, 7, 8.) AME is an Alabama limited liability company, and its sole member is a citizen of Alabama. (See Doc. 7-1). MCC is incorporated in Ohio (see Doc. 7-4), and its principal place of business is Tulsa, Oklahoma (see Doc. 7-5).

C. Amount in Controversy

1. Burdens of proof as to amount in controversy turn on both the allegations in the complaint and when a case is removed.

"When the amount is controversy is in issue, the level of the defendant's burden of proof varies depending upon the allegations of plaintiff's state court complaint. Of course, in order to decide whether defendant[ has met his] burden of proof, the Court must determine exactly what that burden is." Fitzgerald, 282 F. Supp. 2d at 1312-13.

Id. at 1314 (internal citations modified); see also General Pump & Well, Inc. v. Martix Drilling Prods. Co., No. CV608-045, 2009 WL 812340, at *2 (S.D. Ga. Mar. 26, 2009) (citing Fitzgerald, 282 F. Supp. 2d at 1309, and stating, "If the case is a unique one, then Courts have crafted solutions to the question of burden to meet the unusual circumstances.").

This case "is a unique one[.]" First, as MCC's notice of removal recognizes (see Doc. 1, ¶¶ 4, 9), AME's state court complaint includes two ad damnum clauses, one after each claim. The clause following the first claim, for declaratory judgment, does not demand (understandably) a specific sum, and provides:

(Doc. 1-1 at 28.) But the clause following the second claim, for breach of contract, specifically demands a sum below this Court's jurisdictional minimum: "Wherefore, the Plaintiff AME demands judgment against Defendant MCC in a sum beyond the jurisdictional minimum limits of this[, the state,] Court but less than $75,000." (Doc. 1-1 at 30.)

If only the first ad damnum clause controlled, the applicable burden of proof would be, indeed, "intermediate."2 And if only the second ad damnum clause controlled, MCC would be required "to prove to a legal certainty that [AME], if [it] prevailed, would not recover below [the jurisdictional minimum]." Burns, 31 F.3d at 1097. Compare, e.g., Golden v. Dodge-Markham Co., Inc., 1 F.Supp.2d 1360, 1363 (M.D. Fla. 1998) (Plaintiff "made an unspecified demand for damages" because their "ad damnum clause does not specify any dollar amount, it merely makes a general demand for certain types of relief."), with Ponce v. Fontainebleau Resorts, LLC, 653 F.Supp.2d 1297, 1303 (S.D. Fla. 2009) (concluding that Burns/legal certainty standard applied because the state court complaint makes a specific demand for damages in the ad damnum clause of the complaint).

The decision as to which burden of proof applies here is further affected by this case being removed more than ten months after its filing in state court.

When a case is removed—that is, which provision of 28 U.S.C. § 1446(b) ((b)(1) or (b)(3)) a removing defendant invokes—also governs the burden of proof as to amount in controversy. See, e.g., Jones v. Novartis Pharms. Co., 952 F.Supp.2d 1277, 1281-82 (N.D. Ala. 2013) ("The removal procedure statute contemplates two ways that a case may be removed based on diversity jurisdiction. The first way (formerly referred to as `first paragraph removals')[, and accomplished pursuant to 28 U.S.C. § 1446(b)(1),] involves civil cases where the jurisdictional grounds for removal are apparent on the face of the initial pleadings. The second way (formerly referred to as `second paragraph removals')[3] contemplates removal where the jurisdictional grounds later become apparent through the defendant's receipt 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.'" (quoting 28 U.S.C. § 1446(b)(3) (footnote omitted)).4

MCC's removed this lawsuit pursuant to § 1446(b)(3); it occurred within 30 days of receipt of "other paper"—AME's responses to the RFAs (Doc. 1-2)—"from which[, MCC contends,] it may be first ascertained that th[is] case is one which is or has become removable. . . ." Id.; see also Mikesell v. FIA Card Servs., N.A., 936 F.Supp.2d 1327, 1331 (M.D. Fla. 2013) ("If the reason the case was non-removable on the face of the Complaint was limited to the amount in controversy, information later relaying the amount in controversy in the state record or in response to discovery is treated as `other paper,' 28 U.S.C. § 1446(c)(3)(A)[,5] and a notice of removal may be filed within 30 days after receipt by the defendant of the other paper, 28 U.S.C. § 1446(b)(3).").

"The showing required [as to amount in controversy] turns on the particular provision relied upon as the basis for the removal[.]" Rola v. Wal-Mart Stores, Inc., No. 6:11-cv-468-Orl-28DAB, 2011 WL 3156672, at *5 (M.D. Fla. June 29, 2011) (citing Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 & n.4 (11th Cir. 2010)), report and recommendation adopted, 2011 WL 3111965 (M.D. Fla. July 26, 2011). Indeed, § 1446(b)(1) "provides a much wider entry into federal court than does [§ 1446(b)(3)]." Wilson v. Chester Bross Constr. Co., No. CA 11-0020-KD-C, 2011 WL 1380052, at *12 (S.D. Ala. Apr. 12, 2011) (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 760 (11th Cir. 2010)); accord Justice v. Provident Life & Acc. Ins. Co., No. CA 10-0624-KD-C, 2011 WL 560415, at *9 (S.D. Ala. Feb. 8, 2011), report and recommendation adopted, 2011 WL 814591 (S.D. Ala. Mar. 3, 2011). Two major decisions by the Eleventh Circuit, Roe and Pretka, followed Lowery and lightened the burden as amount in controversy for cases removed under § 1446(b)(1),6 however, "[t]his Court agrees with the weight of authority in this circuit following Roe and Pretka, that the analysis set forth in Lowery still applies to [§ 1446(b)(3)] cases." A.W. ex rel. Willis v. Wal-Mart Stores East, LP, No. 6:12-cv-1166-Orl-36DAB, 2012 WL 5416530, at *4 & n.4 (M.D. Fla. Oct. 5, 2012) (collecting cases: Brown v. Tanner Med. Ctr., No. 3:10-cv-316-TFM, 2010 WL 3328500, at *3 (M.D. Ala. Aug. 23, 2010) ("As this is a second-paragraph Type 1 case, the case is still governed by the analysis outlined in Lowery[.]"); Jackson v. Litton Loan Servicing, L.P., No. 3:09-cv-1165-MEF, 2010 WL 3168117, *4 (M.D. Ala. Aug. 10, 2010) ("Until the Eleventh Circuit changes the rule set forth in Lowery, this Court will continue to apply it when considering a notice of removal under the second paragraph of § 1446(b)."); Newton v. BP P.L.C., No. CA 1:12-0205-KD-C, 2012 WL 2417335, *2 (S.D. Ala., June 8, 2012) ("This distinction—that the amount-in-controversy showing required turns on which provision of the removal statute applies to a particular case—continues to be followed by district courts in this Circuit."), report and recommendation adopted, 2012 WL 2401791 (S.D. Ala. June 26, 2012)), report and recommendation adopted, 2012 WL 5416519 (M.D. Fla. Nov. 6, 2012); see also Wilson, 2011 WL 1380052, at *14 n.9 ("Although courts have been critical of Lowery, until the Eleventh Circuit wholly revamps Lowery this Court must continue to insert a square peg into a round hole." (citations omitted)).

Under Lowery, "where damages are unspecified, the removing party bears the burden of establishing the jurisdictional amount by a preponderance of the evidence." 483 F.3d at 1208; see id. at 1211 ("If the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate."); see also SUA Ins. Co. v. Classic Home Builders, LLC, 751 F.Supp.2d 1245, 1250 (S.D. Ala. 2010) ("Lowery effectively requires that a [§ 1446(b)(3)] removal be based on a document that cannot reasonably be construed other than as reflecting that more than $75,000 is in controversy."). In Lowery the Eleventh Circuit further stated that "in assessing the propriety of removal, the court considers the documents received by the defendant from the plaintiff—be it the initial complaint or a later received paper—and determines whether that document and the notice of removal unambiguously establish federal jurisdiction[,]" id. at 1213 (emphasis added), a standard that seems to impose "a different and more rigorous burden than the preponderance of the evidence burden of Tapscott[,]" Exum v. State Farm Fire & Cas. Co., 821 F.Supp.2d 1285, 1291 (M.D. Ala. 2011); SUA Ins. Co., 751 F. Supp. 2d at 1250 ("Lowery's `unambiguously establish' standard necessarily is more exacting than a preponderance of the evidence standard, and both of them cannot simultaneously apply"). Helpfully, however, the court in Exum explained, and the undersigned agrees, "that Tapscott's preponderance of the evidence burden applies to a court's substantive jurisdictional inquiry and that Lowery's unambiguously establish burden replaces Tapscott's burden when a plaintiff challenges the procedural propriety of a removal under [§ 1446(b)(3)] by[, as AME has done,] timely moving to remand under § 1447(c)[,]" id. at 1292 (emphasis added)7; but see Collins v. Marten Transport, Ltd., No. 4:14-CV-0257-VEH, 2014 WL 972245, at *10 (N.D. Ala. Mar. 12, 2014) (A removing defendant satisfies the "preponderance of evidence standard applicable in § 1446(b)(3) removals by unambiguously establishing the amount in controversy as mandated under Lowery[.]").

2. Because a timely motion to remand has been filed, "Lowery preponderance" will guide the determination as to whether MCC has properly removed this action by showing that AME's responses to the RFAs unambiguously establish that the amount in controversy more likely than not exceeds the jurisdictional minimum.

The Court need not decide if AME's state court complaint triggers either Burns legal certainty or Tapscott preponderance because MCC's removal under § 1446(b)(3) and AME's timely motion to remand, pursuant to § 1447(c), require—at a minimum—application of Lowery's "unambiguously establish" standard. As the case law discussed above establishes, a timely motion to remand a case removed under § 1446(b)(3) excludes application of the lower preponderance of the evidence standard in favor of the "more exacting" review set out in Lowery. SUA Ins. Co., 751 F. Supp. 2d at 1250. In choosing to apply Lowery, the undersigned is not saying that Burns would not apply to the facts of this case, but because, as explained below, MCC has not carried its burden to show that AME's responses to the RFAs "unambiguously establish" that the amount in controversy more likely than not exceeds the jurisdictional minimum—a burden obviously lower than legal certainty—the Court need not consider whether Burns should apply in a case in which only one of two ad damnum clauses specifically requests an amount "below the jurisdictional minimum." Fitzgerald, 282 F. Supp. 2d at 1314. But cf. Baker v. Dollar General, 778 F.Supp.2d 1267 (M.D. Ala. 2011) (in which the state court complaint demanded judgment "in the sum of $75,000 plus costs," the case was removed pursuant to other paper—responses to RFAs—and a timely motion to remand was filed; the parties contended that Lowery applied, but the court applied Burns legal certainty and remanded).

Foremost to the issue before the Court is that the amount in controversy determination here is necessarily limited to the "other paper"—AME's January 6, 2014 responses to RFAs—"from which[, MCC argues, it first could] be ascertained that [this] case is one which is or has become removable. . . ." 28 U.S.C. § 1446(b)(3). The proper inquiry is, then, what is conveyed by AME's RFA responses as to the amount in controversy that MCC did not know before their receipt? And does that previously unknown information unambiguously establish the requisite minimum amount in controversy? See, e.g., Justice, 2011 WL 560415, at *10 (removal pursuant to § 1446(b)(3) improper if a removing defendant "had the very information it contends it lacked, or at the very least could have intelligently determined same, at the time the complaint was filed and, therefore, it should have removed this case within thirty (30) days of the filing of the complaint") (collecting cases).8

In its notice of removal, MCC points to a single RFA response, AME's response to RFA No. 4 (which requested that AME admit "[t]hat the value of the CT scanner allegedly damaged in the events of December 12, 2011 exceeds $75,000.00." (emphasis added)), to which AME responded: "Admitted. This scanner had substantial residual value after the accident." (Doc. 1, ¶ 8; see also Doc. 1-2 at 5.) MCC's notice characterizes AME's response as admitting "that the value of the CT scanner exceeded $75,000.00[.]" (Doc. 1, ¶ 8 (emphasis added).) MCC uses that characterization of the RFA response in conjunction with the proceeding paragraph in the removal notice, which characterizes the state court complaint as alleging— without citation thereto—the CT scanner is "a total loss" (Doc. 1, ¶ 7 ("AME's Complaint alleges that . . . the CT scanner fell to the ground and was damages to the point of being a total loss.")), to argue that the damage to the CT scanner exceeds the minimum amount in controversy. In response, as alleged in the remand motion, AME first argues that, as to the CT scanner being "a total loss," its complaint contains "no such allegation[.]" (Doc. 5 at 3.) And MCC has failed to refute this. AME next argues that its response to RFA No. 4 was based on the assumption the RFA sought information concerning the present day/post-accident value of the CT scanner. (See id. at 3-4 (AME "made clear that [it] was responding to the present tense of `exceeds' as set out in [MCC's RFA No. 4]. [AME] interpreted this ambiguous [RFA No. 4] by admitting that the value of the scanner exceeds $75,000.00 which is in the present tense which, as interpreted by [AME], refers to the value of the scanner after the accident." (emphasis in original)).)

Whether "value" as used in RFA No. 4 refers to the CT scanner's pre- or post-accident value is indeed not clear. It appears, moreover, that by including "[t]his scanner had substantial residual value after the accident" in its response, AME interpreted the request as meaning post-accident value. Regardless, AME's arguably ambiguous response to an arguably ambiguous request for an admission— the "other paper" this § 1446(b)(3) removal is based on—is not (1) information allegedly obtained for the first time that (2) unambiguously establishes that the amount in controversy exceeds $75,000. Thus, the response to RFA No. 4 does not carry MCC's burden under Lowery.

Perhaps sensing that AME's response to RFA No. 4 would not carry the day alone, MCC's notice of removal also includes a discussion of the state court complaint's request for indemnification. (See Doc. 1, ¶ 9; see also id. at 5.) In its response to the remand motion, MCC amplifies the argument: that AME's first cause of action, for declaratory judgment, has value that should be included in calculating the amount in controversy. (See generally Doc. 14.) This argument is no doubt correct—"[t]he amount in controversy as to the declaratory relief [sought] `is the monetary value of the object of the litigation from [AME's] perspective.'" Carolina Cas. Ins. Co. v. Tony's Towing, Inc., No. CA 11-0299-C, 2011 WL 4402147, at *4 (S.D. Ala. Sept. 22, 2011) (quoting Weiner v. Tootsie Roll Indus., Inc., 412 Fed. App'x 224, 227 (11th Cir. Feb. 2, 2011) (per curiam) (in turn quoting Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (quoting Cohen, 204 F.3d at 1077))). The problem is, however, that MCC could have removed this case, based on that argument, within 30 days of its receipt of the complaint. It did not "ascertain" anything new—"or at the very least" anything that could have not already been "intelligently determined[,]" Justice, 2011 WL 560415, at *10—as to the complaint's declaratory judgment count from the "other paper" received January 6, 2014.

Furthermore, MCC's attempt to cast AME's response to RFA No. 1—which was never discussed in the notice of removal—as "other paper" from which it first "ascertained" that "AME had erroneously and inaccurately valued their potential claim in the ad damnum clause contained in its original complaint" is similarly unavailing. (E.g., Doc. 14 at 4.9) Very simply, any argument by MCC that it has been duped by AME's valuation of the claims in this lawsuit runs afoul of Eleventh Circuit precedent regarding § 1446(b)(1) removal. See, e.g., Roe, 613 F.3d at 1061 (where "a defendant alleges that removability is apparent from the face of the complaint, the district court must evaluate whether the complaint itself satisfies the defendant's jurisdictional burden. In making this determination, the district court is not bound by the plaintiff's representations regarding its claim, nor must it assume that the plaintiff is in the best position to evaluate the amount of damages sought." (citing Pretka, 608 F.3d at 771) (emphasis added)). Just because MCC is now making a potentially credible argument that this case was removable under § 1446(b)(1), because of the value of the declaratory judgment sought in the complaint, does not mean that the case is now removable under § 1446(b)(3). The two inquiries, at least under current controlling case law in this Circuit, are very different.

Accordingly, just as in Holloway v. Morrow, Civil Action 07-0839-WS-M, 2008 WL 401305 (S.D. Ala. Feb. 11, 2008), "[t]he fundamental problem facing [the removing defendant] is that the Discovery Responses shed no more light on the removability of this action than the Complaint did." Id. at *3. Because "the jurisdictional amount is [not] stated clearly on the face of the ["other paper"] before the court, or readily deducible from [it], . . . the court must remand." Lowery, 483 F.3d at 1211.10

III. Conclusion.

For the reasons explained herein, it is RECOMMENDED that the motion to remand (Doc. 5) be GRANTED and that this case be REMANDED to Mobile County Circuit Court, from whence it came. As to AME's request, made pursuant to 28 U.S.C. § 1447(c), for an award of attorney's fees incurred as a result of removal, because a thorough review of the parties' briefing reveals a colorable, although misplaced, but nevertheless objectively reasonable basis for removal, it is RECOMMENDED that the request be DENIED. See Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005) ("Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal."); see also Bauknight v. Monroe Cnty., Fla., 446 F.3d 1327, 1329-32 (11th Cir. 2006).

IV. Notice of Right to File Objections.

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.