2019 WL 3318117

United States District Court, M.D. Georgia, Macon Division.
Russell MINIX, Plaintiff,
v.
AMERICAN INTER-FIDELITY EXCHANGE, et al., Defendants.
CIVIL ACTION NO. 5:19-CV-105 (MTT)
|
Signed 07/24/2019
Attorneys and Law Firms
Paul R. Ayerbe, William T. Arnold, Ayerbe and Cowart, Macon, GA, for Plaintiff.
Gene A. Major, Dale C. Ray, Jr., Atlanta, GA, for Defendants American Inter-Fidelity Exchange, North American Carriers Inc., Ibro Bajgoric.
Dale C. Ray, Jr., Atlanta, GA, for Defendants John Doe, John Doe LLC.

ORDER
MARC T. TREADWELL, JUDGE
*1 On June 29, 2018, Plaintiff Russell Minix filed suit against Defendants American Inter-Fidelity Exchange (“AIFE”), North American Carriers, Inc. (“NAC”), Ibro Bajgoric, John Doe, and John Doe, LLC in the State Court of Bibb County, alleging negligence based on a tractor-trailer collision with Bajgoric in Macon, Georgia. Doc. 3-1. After engaging in discovery, the Defendants removed the case to this Court pursuant to 28 U.S.C. 1332 and § 1441 on March 28, 2019. Docs. 3; 3-5; 3-6; 3-7. Minix now moves to remand the case to the State Court of Bibb County, contending the Defendants (1) have not met their burden to show the jurisdictional amount-in-controversy requirement and (2) did not timely remove the case. Doc. 7. For the following reasons, that motion (Doc. 7) is DENIED.

I. DISCUSSION

A. Legal Standard
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction … to the district court of the United States for the district and division embracing the place where such action is pending.” If removal is based on a document other than the initial pleading, such as discovery responses, the defendant must file the notice of removal within thirty days of service of the document. 28 U.S.C. § 1446(c)(3)(A). “For removal to be proper, the removing party must establish federal subject matter jurisdiction at the time the notice of removal is filed.” Cross v. Wal-Mart Stores, E., LP, 2011 WL 976414, at *1 (M.D. Ga.) (citing Leonard v. Enterprise Rent-A-Car, 279 F.3d 967, 972 (11th Cir. 2002)). The party seeking removal bears the burden of establishing federal jurisdiction. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (citations omitted).

Diversity jurisdiction exists if the opposing parties are citizens of different states and the amount in controversy exceeds $75,000.1 28 U.S.C. § 1332. Where “the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement.” Pretka, 608 F.3d at 752 (internal quotation marks and citation omitted). The removing defendant may satisfy this burden by showing it is “facially apparent” from the complaint that the amount in controversy exceeds $75,000, “even when the complaint does not claim a specific amount of damages[,]” or with the use of additional evidence demonstrating that removal is proper. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal quotation marks and citations omitted). The “jurisdictional amount” must be “stated clearly on the face of the documents before the court, or readily deducible from them.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1211 (11th Cir. 2007). If the evidence is ambiguous, “neither the defendants nor the court may speculate in any attempt to make up for the notice’s failings.” Id. at 1214-15. However, “courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements.” Roe, 613 F.3d at 1062. Any uncertainties should be resolved in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (citations omitted).

B. Amount in Controversy
*2 Minix does not specify in his complaint the amount of damages that he seeks.2 Doc. 3-1. Indeed, Minix has been quite cagey about the value of his case. This is not a criticism; lawyers often skirmish to avoid removal. Here, though, Minix has little to be cagey about.

Because it is not facially apparent from the complaint that the amount in controversy exceeds $75,000, the Defendants must otherwise prove that it is by a preponderance of the evidence. To do this, the Defendants conducted discovery to determine the amount in controversy. Docs. 3-8; 3-9; 3-10; 3-11; 3-12; 3-13; 3-14; 3-15; 3-16; 10. In his August 6, 2018 response to NAC’s request for admissions seeking to establish basis for removal, Minix refused to admit that the amount in controversy exceeded $75,000. Docs. 3-10 ¶ 1; 3-13 ¶ 1 (stating that “[Minix] has not made a determination as to the value of his damages and therefore can neither admit or deny [‘that the amount in controversy, exclusive of interest and costs, in this matter exceeds $75,000’]”). In his August 28 response to NAC’s interrogatories, Minix stated he incurred $29,592.97 in medical bills and $7,944.84 in lost wages, totaling $37,537.81 in special damages. Docs. 3-12 ¶ 25; 3-13 ¶ 25. In his February 20, 2019 deposition, Minix’s counsel seemed to confirm that a $2,000 medical bill was the only bill that had not been disclosed to the Defendants. Doc. 3-14 at 116:2-20. But on March 4, Minix’s counsel produced an updated itemization of medical expenses totaling $56,093.03, which brought his special damages to $64,037.87. Doc. 3-15 at 3. The Defendants then quickly removed the case to this Court. Doc. 1.

The Defendants have met their burden to show, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. It is undisputed that Minix claims he incurred over $64,000 in special damages. Docs. 3-11 ¶¶ 25, 29; 3-15 at 3; 7 at 2 n.2; see Doc. 10 at 6. He suffered a torn rotator cuff, for which he had surgery, and the Court easily concludes that the special and general damages likely to be awarded for such a serious injury easily exceeds $75,000. Therefore, this Court has subject matter jurisdiction.

C. Time of Removal
Diversity jurisdiction is assessed “at the time of removal.” Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013). “[A] case becomes removable when three conditions are present: there must be (1) an amended pleading, motion, order or other paper, which (2) the defendant must have received from the plaintiff (or from the court, if the document is an order), and from which (3) the defendant can ‘first ascertain’ that federal jurisdiction exists.” Lowery, 483 F.3d at 1213 n.63 (internal quotation marks and citation omitted). All three conditions must be present before Rule § 1446(b)’s thirty-day removal clock starts ticking.

As the Defendants note, Minix’s untimeliness argument, given his cageyness about the value of his case, is more than a little disingenuous. Doc. 10 at 7. He effectively denies the value of his case exceeds $75,000 and then argues the Defendants should have known much earlier than the date of removal that the value of his case exceeds $75,000. Doc. 7 at 3-7. Specifically, Minix argues that the Defendants “have been aware of Plaintiff’s injury since receiving discovery responses on August 28, 2018, seven (7) months prior to filing the Notice of Removal.” Id. at 2. Minix is referring to his discovery response dated August 28 stating that he incurred $29,592.97 in medical bills and $7,944.84 in lost wages, totaling $37,537.81 in special damages. Doc. 7-1 ¶ 25. The Court disagrees this information was sufficient to start the removal clock, particularly given Minix’s evasiveness about the value of his claim and his efforts to thwart removal. Then, on March 4, 2019, Minix sent updated medical expenses totaling $56,093.03 to the Defendants, which brought his special damages to $64,037.87. Doc. 3-15 at 3. The Defendants thus first ascertained that federal jurisdiction existed when they received the updated expenses, which indicated that the amount in controversy exceeded $75,000. Seventeen days later, on March 21, the Defendants removed the case to this Court. Put simply, the Defendants met the thirty-day deadline imposed by § 1446(b).

*3 The Defendants have met their burden of showing by a preponderance of the evidence that the amount in controversy exceeds $75,000, giving the Court subject matter jurisdiction over this case based on diversity. The Court also finds that the Defendants removed the case within thirty days of first ascertaining that federal jurisdiction existed. Accordingly, Minix’s motion to remand (Doc. 7) is DENIED.

II. CONCLUSION
For the foregoing reasons, the Defendants have established by a preponderance of the evidence that this Court has subject matter jurisdiction and that they timely removed the case. Accordingly, Minix’s motion to remand (Doc. 7) is DENIED.

SO ORDERED, this 24th day of July, 2019.

All Citations
Slip Copy, 2019 WL 3318117

Footnotes

1
Minix does not dispute that the parties are citizens of different states. See generally Doc. 7.

2
This cause of action arises from a trucking accident. Doc. 3-1. Minix alleges that when he was in the right turning lane, he was struck by Bajgoric’s truck when Bajgoric attempted to make a right turn from the lane to the left of Minix. Id. ¶ 5.

2019 WL 3216660

United States District Court, M.D. Pennsylvania.
R&L TRANSFER, INC. and Truck Leasing, LLC, Plaintiffs,
v.
YAYA TRANSPORT, LLC and Abdirizak Gure, Defendants.
NO. 4:19-CV-0967
|
Signed 07/17/2019
Attorneys and Law Firms
Michael D. O’Donnell, Christopher Boyle, Cozen O’Connor, Philadelphia, PA, for Plaintiffs.
Joan Devlin Daly, Marks, O’Neill, O’Brien, Dohert & Kelly, PC, Philadelphia, PA, for Defendants.

MEMORANDUM
A. Richard Caputo, United States District Judge
*1 Presently before me is the Motion to Dismiss (Doc. 3) filed by Defendants Yaya Transport, LLC (“Yaya”) and Abdirizak Gure (“Gure”). For the reasons that follow, the motion to dismiss will be denied.

I. Background
The facts as alleged in the Complaint are as follows:

On May 18, 2017, Plaintiff Truck Leasing, LLC (“TL”) owned an International ProStar tractor that was hauling trailers owned by Plaintiff R&L Transfer, Inc. (“R&L”). (See Doc. 1, Ex. “A”, ¶¶ 5-6). At the time, the TL tractor was being operated by Jonathan Shelton (“Shelton”) on Interstate 80 near Snow Shoe Township, Centre County, Pennsylvania. (See id. at ¶ 7). Defendant Gure was operating a 2007 Freightliner tractor with an attached trailer owned by Yaya in the same area at this time. (See id. at ¶¶ 8-9).

At approximately 3:50 a.m. on May 18, 2017, Gure was operating the Yaya tractor at an unsafe speed in the right travel lane on Interstate 80 without activating its rear lighting. (See id. at ¶ 12). In addition, the Yaya tractor and trailer did not have reflective tape or other safety mechanisms. (See id. at ¶ 20). As Shelton approached the unilluminated Yaya tractor-trailer while driving the TL tractor with attached R&L trailers, he was forced to apply the brakes and perform an evasive steering maneuver. (See id. at ¶ 14). Shelton was unable to avoid contacting the rear of the Yaya trailer and a collision resulted. (See id. at ¶ 15). As a result, TL and R&L sustained $109,512.54 in damages. (See id. at ¶ 16).

Based on the foregoing, Plaintiffs commenced this action by filing a one-Count Complaint for negligence on or about May 6, 2019 in the Court of Common Pleas of Centre County, Pennsylvania. (See Doc. 1, Ex. “A”, generally). Defendants removed the action to this Court on June 5, 2019. (See Doc. 1, generally). Defendants subsequently filed the instant motion to dismiss on June 19, 2019. (See Doc. 3, generally). Specifically, Defendants seek to dismiss the “allegations of recklessness and gross negligence so as not to open Defendants to a claim for punitive damages.” (Id.). The motion to dismiss has now been fully briefed, so it is ripe for disposition.

II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading’ standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)).

When resolving a Rule 12(b)(6) motion, “a court must consider no more than whether the complaint establishes ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements’ of the cause of action.” Trzaska v. L’Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency of a complaint, a court must take three steps: (1) identify the elements of the claim; (2) identify conclusions that are not entitled to the assumption of truth; and (3) assume the veracity of the well-pleaded factual allegations and determine whether they plausibly give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

III. Discussion
*2 Defendants seek dismissal of Plaintiffs’ allegations of reckless conduct and gross negligence. (See Doc. 3, generally). More particularly, Defendants argue that such allegations are conclusory and not properly supported by factual averments. (See id.). Thus, Defendants conclude that those allegations should be dismissed so as not to expose them to a claim for punitive damages. (See id.). Defendants’ motion will be denied.

First, Plaintiffs have adequately pled facts to plausibly support a finding of recklessness or gross negligence. A defendant acts recklessly when “his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary to make his conduct negligent.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005). Gross negligence is “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference.” Albright v. Abington Memorial Hospital, 696 A.2d 1159, 1164 (Pa. 1997).

At present, Plaintiffs’ factual allegations are sufficient to find Defendants acted recklessly and/or grossly negligent. Plaintiffs asserts that Gure operated the unilluminated Yaya tractor and attached trailer without safety features, including reflective tape, at night on an interstate in an unreasonably slow manner in violation of state and federal law. A finding of recklessness or gross negligence is plausible on these facts. See, e.g., White v. Trybala, No. 19-14, 2019 WL 2119982, at *2-3 (M.D. Pa. May 15, 2019) (denying motion to dismiss allegations of reckless and gross negligence where the plaintiff pled that tractor-trailer driver failed to stop at a red light).

Plaintiffs have also adequately pled facts to maintain their demand for punitive damages. The Pennsylvania Supreme Court has stated that punitive damages “may be awarded for conduct that is outrageous, because of defendant’s evil motive or his reckless indifference to the rights of others,” and because punitive damages are penal in nature, they “are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (2005). “Punitive damages may be awarded in Pennsylvania for reckless conduct, – that is, conduct less culpable than intentional or willful action,” because “as the Hutchison court implicitly acknowledged,” “[a] plaintiff can sue for negligence and prove recklessness, yet still be unable to prove intent.” Brand Mktg. Grp. LLC v. Intertek Testing Servs., N.A., Inc., 801 F.3d 347, 359 (3d Cir. 2015) (citing Hutchison, 870 A.2d at 770-72). Therefore, “punitive damages may be awarded in negligence cases if the plaintiff proves greater culpability than ordinary negligence at trial,” because there is nothing in “in law or logic to prevent the plaintiff in a case sounding in negligence from undertaking the additional burden of attempting to prove … that the defendant’s conduct not only was negligent but that the conduct was also outrageous,’ such that it warrants punitive damages.” Brand Mktg. Grp., 801 F.3d at 358 (citing Hutchison, 870 A.2d at 772-73). “Punitive damages will be imposed where the defendant knew or had reason to know of facts which create a high degree of risk of physical harm to another, and deliberately proceeded to act, or failed to act, in conscious disregard of, or indifference to, that risk.” Hutchison, 870 A. 2d. at 771 n.7.

*3 At this stage in the litigation, and as explained above, Plaintiffs’ allegations of recklessness and gross negligence are sufficient to withstand the instant motion to dismiss. As a result, Plaintiffs’ request for punitive damages will not be dismissed. See, e.g., White, 2019 WL 5119982, at *3-4; see also Holder v. Suarez, No. 14-1789, 2016 WL 593620, at *8 (M.D. Pa. Feb. 12, 2019) (denying motion for partial summary judgment on the plaintiff’s punitive damage claim where material disputes of fact existed as to whether the defendant was “operating his truck with inoperable lights” and “whether the hazard lights were operational at the time of the accident”).

IV. Conclusion
For the above stated reasons, Defendants’ motion to dismiss will be denied.

An appropriate order follows.

All Citations
Slip Copy, 2019 WL 3216660