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Carlton v. Coon

United States District Court, W.D. Oklahoma

May 16, 2019




         Before the court is Plaintiff Garvin Agee Carlton, P.C., 's (“Garvin”) Motion for Remand [Doc. No. 9]. Defendant Brent W. Coon, P.C., d/b/a Brent Coon & Associates (“Brent”) has responded [Doc. No. 13] and Plaintiff has replied [Doc. No. 14]. The matter is fully briefed and at issue.


         Garvin filed its Complaint[1] [Doc. No. 1-1] on May 5, 2018, in the District Court of Garvin County, State of Oklahoma, stating a claim for breach of contract against Brent. Garvin and Brent entered into a contract in which Garvin would serve as local counsel in an unspecified litigation in exchange for “8% of the gross recoveries on the clients' claims, to be paid out of the defendant's contingency fee.” Complaint at 1; Letter from Brett Agee to Gary M. Reibschlager, June 21, 2013, (“Fee Agreement”) Exhibit A to Complaint.[2]Garvin alleges that it performed its portion of the contract and settlement was reached, but Brent refused to pay the agreed fee. Complaint at 1. Garvin prays for relief in the amount of $74, 950.00, together with costs, attorney fees, and interest. Id.

         On August 17, 2018, Garvin served Brent with discovery requests seeking information concerning the settlement of an action pending in Texas state court. Notice of Removal at 3. Specifically, Garvin's discovery requests sought information related to litigation captioned Leeanna Mann and Kari Smith vs. CVR Energy, Inc.; CVR Partners, LP; CVR Refining, LP; Gary-Williams Energy Company, LLC; and Wynnewood Refining Company, LLC, Texas No. 13-DCV-209679 (“Texas action”). Garvin's First Discovery Requests, Garvin's Motion for Order Compelling Discovery and Awarding Expenses (“Motion to Compel”), Exhibit C, [Doc. No. 3-1]. Brent objected to disclosing information related to that action, as the Fee Agreement attached to the Complaint referenced a case to be filed in the District Court of Garvin County, State of Oklahoma. Motion at 3. On October 11, 2018, Garvin filed its Motion to Compel seeking responses to those discovery requests. Brent filed its Notice of Removal [Doc. No. 1] before responding to Garvin's Motion to Compel.

         Brent asserts that it first learned Garvin was attempting “to collect an alleged local counsel fee from the settlement of a completely different” lawsuit than referenced in the Complaint and that the recovery sought would be in excess of $75, 000.00 when Garvin filed its Motion to Compel. Response at 2 (emphasis in original). Based on that motion, Brent claims that, for the first time, it was able to calculate that “8% of the total settlement of that Texas Suit exceeds $75, 000.00.” Response at 2-3.

         Brent removed the action to this Court on October 26, 2018, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Brent contends removal was timely, having been filed within thirty (30) days of Garvin's Motion to Compel. On November 26, 2018, Garvin filed its Motion for Remand on the grounds that: (1) there is no diversity jurisdiction under 28 U.S.C. § 1332(a) as the amount in controversy does not exceed $75, 000.00; and, (2) removal is untimely. Motion at 2, 3. Garvin also seeks attorney fees and costs associated with “the improper removal.” Motion at 5.


         An action is only removable if it could have originally been brought in federal court. 28 U.S.C. 1441(a). “A notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy 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.” 28 U.S.C. § 1446(b)(3). However, “[g]iven the limited scope of federal jurisdiction, there is a presumption against removal, and courts must deny such jurisdiction if not affirmatively apparent on the record.” Oklahoma Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778 (10th Cir. 2005), abrogated by Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) (citing Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995)).

         Removal statutes are narrowly construed and the party in support of removal “bears the burden to establish that its removal of Plaintiff's case to federal court was proper.” Hernandez v. Liberty Ins. Corp., 73 F.Supp.3d 1332, 1336 (W.D. Okla. 2014) (citing Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1079 (10th Cir.1999)). In a removal based on diversity jurisdiction “[b]oth the requisite amount in controversy and the existence of diversity must be affirmatively established on the face of either the petition or the removal notice.” Singleton v. Progressive Direct Ins. Co., 49 F.Supp.3d 988, 991 (N.D. Okla. 2014) (quoting Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995)).

         The removing party “must affirmatively establish jurisdiction by proving jurisdictional facts that ma[ke] it possible that $75, 000 [is] in play.” McPhail v. Deere & Co., 529 F.3d 947, 955 (10th Cir. 2008) (emphasis in original). “[T]he sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy” except where “the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).” 28 U.S.C. § 1446(c)(2), (c)(2)(B).

         “[I]n the absence of an explicit demand for more than $75, 000, the defendants must show how much is in controversy through other means.” McPhail, 529 F.3d at 955. “Other means” can include “estimates of potential damages from the allegations in plaintiff's pleading, a proposed settlement amount, discussion between counsel, etc.” Singleton, 49 F.Supp.3d at 992. “Beyond the complaint itself, other documentation” includes such things as “interrogatories obtained in state court before removal, affidavits or other evidence submitted in federal court afterward.” McPhail, 529 F.3d at 956. However, “[u]nder the Tenth Circuit's view of § 1446(b)(3), ‘the circumstances permitting removal must normally come about as a result of a voluntary act on the part of the plaintiff.'” Hernandez, 73 F.Supp.3d at 1340 (quoting Huffman, 194 F.3d at 1078) (internal citations omitted).


         Garvin moves for remand because: (1) Brent's Notice of Removal was untimely as it was filed more than thirty (30) days after Brent “was served process and made aware of the applicable request for relief -- $74, 950.00 -- on May 31, 2018”; and, (2) the requirements for diversity jurisdiction are not met because it does not seek recovery in excess of $75, 000.00. Motion at 2, 3. Garvin also contends the Notice of Removal was filed for improper purposes and requests an award of attorney fees under § 1447(c) if remand is ordered. Motion at 4, 5. Brent asserts that its Notice of Removal is proper as: (1) it was timely filed based upon the date of Garvin's Motion to Compel; and, (2) the amount in controversy, ...

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