United States District Court, W.D. Oklahoma
GARVIN AGEE CARLTON, P.C., formerly known as GARVIN AGEE CARLTON & MASHBURN, P.C., Plaintiff,
BRENT W. COON, P.C., D/B/A BRENT COON & ASSOCIATES, Defendant.
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE.
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.
filed its Complaint [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.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.
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.
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.
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.
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
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)).
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).
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
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, ...