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Morrison Construction Co. v. Blurock Concrete, LLC

United States District Court, N.D. Oklahoma

March 29, 2019

MORRISON CONSTRUCTION CO., an Oklahoma corporation, Plaintiff,
v.
BLUROCK CONCRETE, LLC a Kansas limited liability company, Defendant.

          OPINION AND ORDER

          Terence C. Kern United States District Judge.

         Before the Court are Defendant BluRock Concrete, LLC's Motion to Dismiss for Improper Venue or, in the alternative, Transfer This Action to the District of Kansas (“venue motion”) (Doc. 10) and Plaintiff Morrison Construction Company's Motion to Remand (Doc. 14). For reasons discussed below, both motions are DENIED.

         I. Factual and Procedural Background

         Plaintiff is an Oklahoma corporation located in Tulsa, OK, and Defendant is a Kansas LLC located in Wichita, KS. (Doc. 2-1, pg. 10.) Plaintiff and Defendant entered into a contract for Defendant to provide services and materials for a construction project (“project”) located in Arkansas City, KS. (Doc. 2-1, ¶ 4, 7.) Plaintiff alleges that Defendant failed to fulfill its contractual obligations, including failure to pay vendors, causing delays to the project and damages. (Doc. 2-1, ¶ 17, 22, 23.) Plaintiff also alleges that Defendant made intentional and negligent misrepresentations about its ability to complete the work. (Doc. 2-1, ¶ 38-47.)

         Plaintiff filed this case in Tulsa County District Court on December 14, 2017, alleging causes of action for breach of contract, promissory estoppel, delay in performance, intentional misrepresentation, negligent misrepresentation, unjust enrichment, and “constructive fraud and deceit.” Plaintiff also requested damages “in excess of $75, 000.” (Doc. 2-1, pg. 9.) Defendant removed this case to this Court on the basis of diversity jurisdiction on January 25, 2018. (Doc. 2.) Plaintiff does not contest that the parties are diverse for removal purposes.

         Defendant filed its venue motion on February 1, 2018, alleging that the requirements for proper venue are not met and, in the alternative, that the case should be transferred for the convenience of parties and witnesses. (Doc. 10.) Plaintiff filed its Motion to Remand on February 26, 2018, alleging that removal on the basis of diversity jurisdiction was not appropriate, as the case does not satisfy the amount in controversy requirement. (Doc. 14.)

         II.Motion to Remand (Doc. 14)

         A. Removal Law

         Any state court case that could have been filed in federal court can also be removed to federal court. See 28 U.S.C. § 1441(a). A federal court has jurisdiction over state law claims where the matter in controversy is (1) between citizens of different states (“complete diversity”) and (2) exceeds $75, 000, exclusive of costs and interests (“amount in controversy”). See Id., 28 U.S.C. § 1332(a). There is a presumption against removal, however, and courts must deny jurisdiction if it is not affirmatively apparent on the record. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). Here, it is undisputed that the suit demonstrates complete diversity. Accordingly, Plaintiff must show that the case does not meet the amount in controversy requirement to justify remand.

         The amount in controversy requirement can be established by a plaintiff's allegation that the amount in controversy exceeds $75, 000, or by a defendant coming forward with evidence of jurisdictional facts supporting a conclusion that the amount in controversy exceeds $75, 000. See McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008). However, a plaintiff may not defeat removal based on diversity of citizenship by voluntarily reducing the amount in controversy after removal. Similarly, events that occur subsequent to removal that are beyond the plaintiff's control but which reduce the amount recoverable will also not deprive the district court of jurisdiction. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938); Whitham v. Progressive Northern Ins. Co., No. 19-cv-0055-CVE-FHM, 2019 U.S. Dist. LEXIS 35474, *4 (N.D. Okla. Mar. 6, 2019).

         B. Remand is not Appropriate

         The Court finds that Plaintiff's Motion to Remand should be denied, because the case was properly removed on the basis of diversity jurisdiction. As Plaintiff concedes, at the time it filed this action, it held the good faith belief that the recovery would be in excess of $75, 000. (Doc. 14, pg. 3.) Plaintiff stated that “since the filing of the lawsuit, some invoices have been paid, certain delay charges that were anticipated from the owner of the project have not been charged to date, damages have been recalculated, and Plaintiff no longer believes the amount in controversy exceeds $75, 000.” (Doc. 14, pg. 3) (emphasis added). In an affidavit attached to its Motion to Remand, Plaintiff's president stated that as of February 22, 2018, Defendant owed Plaintiff $14, 861.53, and that the owner of the project “has not [invoked its right to assess] back charges against Morrison, and Morrison now anticipates that the owner intends to waive the right to the same.” (Doc. 14-1, ¶ 9.)

         However, none of these facts were established at the time of removal. When Defendant removed this case, it cited Plaintiff's allegation that the amount in controversy would be in excess of $75, 000. The Tenth Circuit has held that “[g]enerally, the amount sued for fixes the amount in controversy for jurisdictional purposes.” Huffman v. Saul Holdings Ltd. Pshp., 194 F.3d 1072, 1079 (10th Cir. 1999). Plaintiff has not presented any facts indicating that the amount sued for was not in fact the amount in controversy at the time of removal. Rather, Plaintiff concedes that all events reducing damages occurred after it filed the lawsuit. Moreover, to the extent that the affidavit attached to Plaintiff's Motion to Remand can be construed as Plaintiff voluntarily limiting its damages to less than $75, 000, this too does not deprive the Court of jurisdiction, as Plaintiff may not defeat removal jurisdiction by stipulating to a lower maximum recovery. Accordingly, this case was appropriately removed and remand is not appropriate.

         III. ...


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