United States District Court, W.D. Oklahoma
A. OWEN SMITH, III, an individual, and WILLIAM HENRY SMITH, an individual, Plaintiffs,
ROBERT OAKLEY BROWN, an individual, VALLEY TRANSP. SERV., INC., a foreign for-profit corp., and GREAT WEST CAS. CO., a foreign for-profit corp., Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Remand. Doc. 7.
Defendants have responded. Doc. 8. Finding that this Court
has jurisdiction pursuant to 28 U.S.C. § 1332(a), the
Court will DENY Plaintiffs' Motion.
negligence case comes to the Court on removal from the
District Court of Kay County, Oklahoma. Plaintiffs, who filed
this action against Defendant Valley Transportation and one
of its drivers, seek damages for injuries sustained during a
March 2016 accident on an interstate highway in northern
Oklahoma. Plaintiffs' vehicle allegedly collided with the
cargo that Defendants had been transporting after the cargo
became unsecured and was released onto the highway.
Defendants removed this case on June 6, 2017, citing
diversity jurisdiction under 28 U.S.C. § 1332(a).
Plaintiffs' Motion to Remand argues that no diversity
jurisdiction exists because the Complaint expressly seeks
damages up to, but not more than, the amount-in-controversy
limit under § 1332(a).
jurisdiction under § 1332(a) requires that complete
diversity exist between plaintiffs and defendants and that
the amount in controversy exceeds $75, 000, exclusive of
interests and costs. The amount in controversy is simply
“an estimate of the amount that will be put at issue in
the course of the litigation.” McPhail v. Deere
& Co., 529 F.3d 947, 956 (10th Cir. 2008). On a
motion to remand, the removing party has the burden of
proving that the action has been properly removed. Hart
v. Wendling, 505 F.Supp. 52, 53 (W.D. Okla. 1980). The
removing party therefore “must prove facts in support
of the amount in controversy by a preponderance of the
evidence.” McPhail, 529 F.3d at 953 (10th Cir.
2008) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). But, and perhaps
confusingly, this “preponderance of the evidence
standard applies to jurisdictional facts, not jurisdiction
itself[;] what the proponent of jurisdiction must
‘prove' is contested factual assertions.”
Id. (alterations omitted). This is because
“jurisdiction itself is a legal conclusion, a
consequence of facts rather than a provable
‘fact'.” Id. at 954.
proving these contested factual assertions, the removing
party may rely on, among other things, affidavits,
interrogatories or admissions in state court, and
calculations from the complaint's allegations.
Id. Indeed, “[t]he general federal rule has
long been to decide what the amount in controversy is from
the complaint itself, unless it appears or is in some way
shown that the amount stated in the complaint is not claimed
‘in good faith'.” Marchese v. Mt. San
Rafael Hosp., 24 Fed.Appx. 963, 964 (10th Cir. 2001)
(citing Horton v. Liberty Mut. Ins. Co., 367 U.S.
348, 353 (1961)); see also St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 288 (1938) (“[U]nless
the law gives a different rule, the sum deemed by the
plaintiff controls if apparently made in good faith.”).
Once the party asserting federal jurisdiction has done that,
the “St. Paul Mercury standard comes to the
fore”-that is, “the case stays in federal court
unless it is legally certain that the controversy is worth
less than the jurisdictional minimum.”
McPhail, 529 F.3d at 954. In a sense, then, the
burden shifts to the party seeking remand, who must then
prove to a legal certainty that the amount in controversy is
less than $75, 000.
the parties disagree over whether Plaintiffs have pled
damages of more than $75, 000 that would satisfy §
1332(a)'s amount-in-controversy threshold. Their dispute
centers on the twelfth and thirteenth paragraphs of
Plaintiffs' Petition from state court:
12. That as a direct and proximate result of Defendant's
acts and omissions, both Plaintiffs suffered bodily injuries,
suffered pain of body and mind, and incurred expenses for
medical attention for said injuries, with general and special
damages totaling $75, 000.
13. Additionally, Plaintiffs sustained damage to and/or loss
of their property, thereby rendering Defendant responsible
for the attorneys' fees and costs associated with the
pursuit of said property damage claims.
Ex. 1, at 2.
dispute, then, is as straightforward as this: Plaintiffs
contend that they seek $75, 000-no more, no less-in damages.
As evidence, they point to their Petition's prayer, which
seeks “judgment [in] the amount of $75, 000.00, plus
court costs, pre-judgment interest, post-judgment interest,
attorneys' fees and costs and all other damages and
remedies.” Doc. 7, Ex. 1, at 2. Defendants, though,
believe Plaintiffs in fact seek more than $75, 000 because in
addition to that amount, they seek additional sums for
Defendants have the better argument, that is not clear from
the face of Petition. At a minimum, Plaintiffs seek $75, 000
in general and special damages for injuries deriving from
bodily injuries and pain and suffering. But they also seek
something else: “attorneys' fees and costs
associated with the pursuit of [their] property damage
claims.” Id. Put simply, whether the amount in
controversy exceeds $75, 000 hinges solely on whether
Plaintiffs' attorneys' fees for pursuing property
damage claims need be included in calculating the amount in
controversy requirement. Fortunately for Defendants, they
clarify, not all attorneys' fees must be included when
calculating the amount in controversy; in fact, they
“may only be used as part of the [amount in
controversy] calculation where the plaintiff has a right to
them because it has claimed them under an applicable statute
in its complaint.” Coca-Cola Bottling of Emporia,
Inc. v. S. Beach Beverage Co., 198 F.Supp.2d
1280, 1284 (D. Kan. 2002). Here, Plaintiffs do not offer any
particular statute that would entitle them to attorneys'
fees if successful. Yet their failure to do so does not mean
such a statute does not exist. Indeed, it does:
In any civil action to recover damages for the negligent or
willful injury to property and any other incidental costs
related to such action, the prevailing party shall be
allowed reasonable attorney's fees, court costs and
interest to be set by the ...