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Partin v. Marmic Fire & Safety Co., Inc.

United States District Court, N.D. Oklahoma

July 10, 2017

JOHN C. PARTIN, Plaintiff,
v.
MARMIC FIRE & SAFETY CO., INC., JOPLIN FIRE PROTECTION CO., Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL UNITED STATES DISTRICT JUDGE

         I. Background

         The 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 provides:

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.

         This is 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).

         On June 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 id.).

         Partin's 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).

         Partin's 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).

         On June 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).

         On 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).

         Partin 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).[1] 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.).

         On 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. 2).

         Partin 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 ...


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