United States District Court, N.D. Oklahoma
JOHN C. PARTIN, Plaintiff,
MARMIC FIRE & SAFETY CO., INC., JOPLIN FIRE PROTECTION CO., Defendants.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
Oklahoma Pleading Code expressly specifies the manner in
which plaintiffs are to state their damage demands when they
file petitions in state court. In relevant part, the statute
Every pleading demanding relief for damages in money in
excess of the amount required for diversity jurisdiction
pursuant to Section 1332 of Title 28 of the United States
Code shall, without demanding any specific amount of money,
set forth only that the amount sought as damages is in excess
of the amount required for diversity jurisdiction pursuant to
Section 1332 of Title 28 of the United States Code, except in
actions sounding in contract. Every pleading demanding relief
for damages in money in an amount that is required for
diversity jurisdiction pursuant to Section 1332 of Title 28
of the United States Code or less shall specify the amount of
such damages sought to be recovered.
Okla. Stat. tit. 12, § 2008(A)(2). Some
plaintiff's lawyers, seeking to avoid federal court,
routinely ignore or disobey the plain language of the
statute, refuse to respond to proper discovery requests
regarding the plaintiff's damage demand, and/or refuse to
comply with state court orders compelling them to state
whether or not the damages sought meet the amount in
controversy for diversity jurisdiction. This Court and many
others have disapproved of such tactics, noting that they
amount to “gamesmanship.” See, e.g., Aulestia
v. Nutek Disposables, Inc., No. 14-CV-769-JED-FHM, 2015
WL 632073 (N.D. Okla. Feb. 13, 2015) and cases cited therein.
another of those cases, as will be demonstrated by a summary
of the procedural gymnastics which were required to determine
whether the plaintiff, John C. Partin, seeks damages in an
amount less than or more than the amount required for
diversity jurisdiction. Partin initiated this wrongful
termination action on May 11, 2015 in Tulsa County District
Court. Contrary to the plain language of Okla. Stat.
tit. 12, § 2008(A)(2), Partin's original Petition
demanded actual damages in excess of $10, 000 and punitive
damages in excess of $10, 000. (Doc. 2-1 at 13, 14). Because
Partin's pleading did not include a request for damages
in the manner required by § 2008(A)(2), defendant Marmic
Fire & Safety Co., Inc. (Marmic) moved on June 8, 2015
for an order requiring Partin to clarify damages in
accordance with Okla. Stat. tit. 12, § 2009(H).
(Doc. 2-1 at 18). That statute provides that, after a
defendant files a motion to clarify damages, the plaintiff is
required “to show by a preponderance of the evidence
that the amount of damages, if awarded, will not exceed the
amount required for diversity.” Okla. Stat.
tit. 12, § 2009(H). If the state court then “finds
that any damages awarded are more likely than not to exceed
the amount of damages required for diversity jurisdiction,
the plaintiff shall amend his or her pleadings in conformance
with [§ 2008(A)(2)].” Okla. Stat. tit.
12, § 2008(A)(2).
11, 2015, Partin responded to defendant's Motion to
Clarify by (1) asserting that “this is not a diversity
case since Defendant does business in Oklahoma, ” (2)
arguing that the requirements of §§ 2008(A)(2) and
2009(H) are ambiguous because of recent changes to the
statutes, and (3) claiming that damages cannot be completely
ascertained because emotional damages are incalculable and to
be determined by a jury. (Doc. 2-1 at 22-25). When Marmic
served discovery requesting that Partin identify whether he
seeks damages in excess of $75, 000, Partin objected that the
inquiry was “[o]utside the bounds of proper
discovery” and that “this is not a diversity case
since the Defendant does business in Oklahoma.” (Doc.
2-1 at 42). Marmic subsequently moved to compel Partin to
respond to the discovery request about damages, and Partin
responded, reiterating the same arguments. (Doc. 2-1 at
67-68). The state court granted the Motion to Compel and
instructed Partin “to amend his pleading to identify
the amount of damages in accordance with” Okla.
Stat. tit. 12, § 2008(A)(2) by November 15, 2015.
(Doc. 2-1 at 119). On October 1, Partin's counsel sent
defendant's counsel a letter arguing that a specific
dollar amount can only be specified by a jury. (Doc. 2-1 at
133). The letter did not mention damages in relation to $75,
000 or the diversity statute, 28 U.S.C. § 1332. (See
First Amended Petition, filed on December 15, 2015, again
demanded in excess of $10, 000 for actual damages and in
excess of $10, 000 for punitive damages, and requested
“back pay for all lost wages, benefits, front pay in
lieu of reinstatement, compensatory and consequential
damages, [and] punitive damages.” (Doc. 2-1 at
164-166). The defendants again moved to clarify damages on
January 5, 2016. (Doc. 2-1 at 167). Partin responded with the
same positions he previously argued. On February 22, 2016 the
state court granted the defendants' second motion to
clarify damages and ordered Partin “to file a Second
Amended Petition with basic language to establish damages
under” Okla. Stat. tit. 12, § 2008(A)(2).
(Doc. 3 at 44).
Second Amended Petition was filed on February 26, 2016. That
pleading indicated that Partin sought actual damages in
excess of $10, 000 for alleged lost wages between $26, 000
and $28, 000 “annually.” (Doc. 3 at 50). Partin
also demanded a “company vehicle, ”
“non-specific out-of-pocket losses, good name,
reputation, and emotional distress to be determined by a jury
in accord with Oklahoma statutes and law, ” punitive
damages in excess of $10, 000, “benefits, front pay in
lieu of reinstatement, [and] compensatory and consequential
damages.” (Id. at 48, 49, 50). On May 3, 2016,
defendants filed a Renewed Motion to Require Plaintiff to
Identify Damages. (Doc. 3 at 93). Partin responded on May 18,
asserting that: defendants' motions to clarify were
frivolous; diverse citizenship was absent; and exact damages
were incalculable. (Doc. 3 at 97, 98).
22, 2016, defendants filed another Motion to Clarify Damages
and Request for Evidentiary Hearing. (Doc. 3 at 101). The
same day, the state court gave Partin 20 days to establish
“whether an award in favor of the Plaintiff will not
exceed the amount required for diversity jurisdiction.”
(Id. at 105). Plaintiff thereafter responded that
any attempt to put a dollar amount on the emotional distress
would be pure speculation. There was no indication whether
total damages sought would or would not exceed $75, 000.
(Doc. 3 at 111-115).
August 1, 2016, the state court granted defendants'
Renewed Motion to Require Plaintiff to Identify Damages. The
state court entered an order stating, “In this case,
Plaintiff failed to present any evidence to overcome the
presumption [that damages exceed $75, 000]. The Motion is
granted and plaintiff is ordered to file a Second Amended
Petition stating damages are in excess of $75, 000.00 within
10 days.” (Doc. 3 at 146).
did not comply with the August 1, 2016 order to amend by
August 15, 2016, but instead filed an Application to Assume
Original Jurisdiction and Petition for Writ of Prohibition
(Application) in the Oklahoma Supreme Court. (Doc. 3 at
160). Partin expressly requested that the
Oklahoma Supreme Court issue an order “prohibiting the
district court from enforcing its Order, filed August 1, 2016
and requiring its vacation.” (Id. at 161).
Partin then moved to stay the order “pending resolution
of [Partin's] application on writ of prohibition.”
(Id. at 148-149). In support of his request to stay
the order, Partin represented that “no party is
prejudiced by such a stay.” (Id.).
September 26, 2017, the Oklahoma Supreme Court denied
Partin's Application and declined to assume original
jurisdiction. (Doc. 3 at 194). On October 12, 2016, Partin
finally filed his Third Amended Petition, stating that
“Plaintiff prays for actual damages in an amount . . .
in excess of . . . $75, 000.00” and “punitive
damages in excess of . . . $10, 000.00.” (Doc. 3 at
157). Defendants filed their Notice of Removal on October 19,
2016, within 30 days of both (1) the Oklahoma Supreme
Court's denial of Partin's Application and (2)
Partin's filing of the Third Amended Petition which, for
the first time, demanded damages in excess of $75, 000. (Doc.
moves to remand and argues that removal is improper because
1) the Notice of Removal was filed more than thirty (30) days
after the state court's August 1 order, and 2) the
defendants have not presented the requisite factual evidence