United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
H. CLELAND UNITED STATES DISTRICT JUDGE
Jane Brewer brought this action in state court against
Defendant Schindler Elevator Corporation on August 1, 2016.
(Dkt. # 2, Pg. ID 15.) Plaintiff alleges that she was injured
when the elevator she was riding malfunctioned: descending,
rising, and descending again before stopping and trapping her
for ninety minutes. (Dkt. # 1, Pg. ID 6.) Plaintiff did not
allege a specific amount in controversy, but requested
damages exceeding $25, 000 (Id.) In Michigan,
plaintiffs do not need to specify an amount in controversy
unless they seek $25, 000 or less. Mich. Ct. R. 2.111(B)(2) .
Defendant filed notice of removal in this court on August 29,
2016, claiming diversity jurisdiction. (Dkt. # 1, Pg. ID 1);
see 28 U.S.C. § 1332.
the court is Plaintiff's Motion to Remand on the grounds
that Defendant failed to establish that the amount in
controversy exceeded $75, 000. With the motion, Plaintiff
offered to stipulate that: “She will not be making a
claim nor pursuing damages in an amount equal to or exceeding
the sum of $75, 000.” (Dkt. # 9, Pg. ID 32.) Defendant
relied on damages asserted in the complaint and a series of
pre-removal settlement negotiations valuing the claim at $85,
000. (Dkt. # 2, Pg. ID 5-8.) The matter is fully briefed and
no hearing is needed. See E.D. Mich. LR 7.1(f)(2).
For the reasons stated below, the court will deny
in a civil action filed in state court may remove the action
to federal court if the federal court has original
jurisdiction. See 28 U.S.C. § 1441. The federal
court has diversity jurisdiction when the action is between
citizens of different states and the amount in controversy
exceeds $75, 000. See 28 U.S.C. § 1332(a)(1).
Generally, the sum claimed by the plaintiff, if made in good
faith, is the amount in controversy. See St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938).
However, where a plaintiff claims an unspecified amount in
damages, the defendant seeking removal has the burden to
prove that the amount in controversy more likely than not
exceeds $75, 000. Everett v. Verizon Wireless, Inc.,
460 F.3d 818, 822 (6th Cir. 2006) (citing Gafford v. Gen.
Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993) abrogated
on other grounds by Hertz Corp. v. Friend, 559 U.S.
77 (2010)). When considering the amount in controversy,
courts examine the claims at the time of removal. Rogers
v. Wal-Mart Stores Inc., 230 F.3d 868, 871 (6th Cir.
2000). Events that occur after removal that reduce the amount
in controversy do not deprive a court of jurisdiction.
Id. at 872.
makes two arguments for remand: that an unequivocal
limitation of damages below the jurisdictional limit
generally requires remand and that Defendant failed to meet
its burden to prove the jurisdictional amount by a
preponderance of the evidence. (Dkt. # 9-2, Pg. ID 41.)
argues that her post-removal stipulation is an unequivocal
limitation of damages that requires remand. (Dkt. # 9-2, Pg.
ID 42.) Generally, a post-removal stipulation reducing the
amount in controversy to below the jurisdictional limit does
not destroy diversity jurisdiction because the
“determination of federal jurisdiction in a diversity
case is made at the time of removal.” Rogers,
230 F.3d at 872. However, the Sixth Circuit has recognized,
in an unpublished opinion, a situation where a post-removal
stipulation could require a court to remand. In Shupe v.
Asplundh Tree Expert Co, the court held that a plaintiff
may stipulate to a claim less than $75, 000 when the
stipulation unequivocally limits damages and provides the
first specific information about the amount in controversy.
566 Fed.Appx. 476, 482 (6th Cir. 2014). In such
circumstances, the stipulation works to clarify, rather than
reduce, the amount in controversy. Id. Shupe does
not apply here because Plaintiff's stipulation is not the
first instance where Plaintiff provided information regarding
the amount in controversy-as discussed below, Plaintiff
valued her claim over the jurisdictional amount during a
series of settlement negotiations before the suit. The court
finds no reason here to diverge from the rule expressed in
Rogers. Plaintiff's post-removal stipulation
does not require remand.
relying on May v. Wal-Mart Stores, Inc., argues that
settlement negotiations alone cannot establish the amount in
controversy. See 751 F.Supp.2d 946, 949 (E.D. Ky.,
Nov. 17, 2010). In May, the defendant relied
exclusively on the plaintiff's settlement demand as
evidence of the amount in controversy. May, 751
F.Supp.2d at 949. The court found that the settlement demand
alone was insufficient to establish the amount in
controversy; however, the settlement demand was some evidence
of the amount in controversy. Id. This district has
permitted the use of an email containing settlement demands
as relevant evidence to establish the amount in controversy.
See, e.g., Santos-Tiller v. Krispy Kreme Doughnut
Corp., 2016 WL 4445329 (E.D. Mich., Aug. 24, 2016)
(Cleland, J.). Likewise, several circuits have held that a
plaintiff's settlement offer is relevant evidence of the
amount in controversy. See, e.g., McPhail
529 F.3d at 956 (citing Cohn v. Petsmart, Inc., 281
F.3d 837, 840 (9th Cir. 2002)); Rising-Moore v. Red Roof
Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006). Unlike
the defendant in May, Defendant did not solely rely
on a settlement demand, but on a combination of settlement
negotiations, additional expenses, and the allegations in the
complaint to value the claim over $75, 000.
relies on a series of pre-suit settlement negotiations that
occurred over a 21-month period where Plaintiff valued the
claim at $85, 000. (Dkt. # 2, Pg. ID 16; Dkt. # 7, Pg. ID 28;
Dkt. # 10, Pg. ID 52-54.) Defendant provided reports obtained
before the suit detailing Plaintiff's injuries. Plaintiff
suffered from back pain with radiculopathy, likely from disc
protrusions at her L1-L2 and L5-S1 vertebrae. (Dkt. # 10, Pg.
ID 58.) The report also described Plaintiff's treatment
for the injuries. (Id. at 57-59). Beyond the
settlement negotiations, Defendant relies on a workers
compensation lien of $11, 000, lost wages worth approximately
$5, 000, and additional lost wages and workers compensation
for unpaid chiropractic treatments totaling $6, 600. (Dkt. #
10, Pg. ID 53.) Defendant also produced physical therapy
bills totaling $7, 100, which all combined totals $29, 700 in
economic damages. (Id. at 67.)
also points to the allegations in the complaint. A defendant
may rely on an estimate of potential damages from the
allegations within the complaint. McPhail, 529 F.3d
at 955-56. The court may determine the amount in controversy
based on the face of the complaint even though the complaint
did not specify the numerical value of the damages.
Id. at 955-56 (citing Luckett v. Delta Airlines,
Inc., 171 F.3d 295, 298 (5th Cir. 1999). Plaintiff here
alleges injuries to her back, legs, foot, “and related
and resultant injuries.” (Dkt. # 2, Pg. ID 7.) These
injuries led Plaintiff to suffer from back pain with
radiculopathy, sleep deprivation, and anxiety. (Dkt. # 10,
Pg. ID 58.) Plaintiff in her complaint seeks relief for
several different kinds of damages such as physical pain and
suffering, disability and disfigurement, mental anguish,
fright and shock, denial of social pleasures and enjoyment of
the usual activities of life, as well as
“embarrassment, humiliation, and mortification.”
(Id.) She seeks past and future medical expenses,
and loss of earnings and earning capacities. (Id.)
district has previously found that requests for similar
relief indicated that the amount in controversy more likely
than not exceeded $75, 000. In Bass v. IKEA U.S. E.
LLC, the plaintiff listed a broken nose and other
physical injuries to plaintiff's face, head, left hand,
right knee, and back. 2016 WL 2342321, at *2 (E.D. Mich. May
4, 2016) (Drain, J.). The plaintiff in Bass also
requested relief for pain and suffering, mental anguish, and
continued medical care. Id. The court determined
that these damages indicated that the amount in controversy
more likely than not exceeded $75, 000. Id.
the plaintiff in Barber v. Zurich American Ins. Co.
alleged injuries to the plaintiff's lower back, neck,
legs, left arm, headaches, and depression as well as loss of
wages, reasonable and necessary expenses for care, recovery,
or rehabilitation. 2015 WL 93530, at *2 (E.D. Mich. Jan. 7,
2015) (Zatkoff, J.). The court determined that these
injuries, “combined with an open-ended request for an
unspecified amount of damages, ” made it more likely
than not that the amount in controversy exceeded $75, 000.
Id. (internal quotation marks omitted).
court is satisfied that the pre-suit and pre-removal
settlement negotiations, Plaintiff's past medical
expenses, and the allegations in the complaint show that the
amount in controversy more likely than not exceeded $75, 000
at the time of ...