United States District Court, S.D. Ohio, Eastern Division.
DWC COMPANY, INC., Plaintiff
v.
CSX TRANSPORTATION, INC., Defendant.
Civil Action No. 2:08-cv-718.
Jan. 21, 2009.
ORDER
SARGUS, District Judge.
This action was originally filed in the Franklin County Municipal Court, and was removed to this court on July 23, 2008. (Doc. 2.) Plaintiff DWC Company (“DWC”) brought claims under 49 U.S.C. § 14706, called the “ Carmack Amendment”, and seeking $9,355.11 in damages. On August 21, 2008, DWC filed a motion to remand this case, claiming that, under the Carmack Amendment, the jurisdictional threshold is $10,000. (Doc. 7.) Defendant CSX Transportation Inc. (“CSX”) argued in response that the real amount in controversy, as evidenced by DWC’s settlement demands, is $15,000, and thus the threshold is satisfied.
In his Report and Recommendation of December 1, 2008, the Magistrate Judge found that the actual amount in controversy was more than $10,000, that the action was properly removed, and that the motion to remand should be denied. (Doc. 20.) No party has filed objections to the Magistrate Judge’s report and recommendation.
Upon de novo review, as provided for by 28 U.S.C. § 636(b) (l) and Fed. R. Civ. Pro. 72(b)(3), I find that the Magistrate Judge was correct in his determination that remanding this case would be improper, and that the jurisdictional threshold for bringing a claim under the Carmack Amendment has been met in this case. I therefore ADOPT the Report and Recommendation (Doc. 20). Plaintiff’s Motion to Remand (Doc. 11.) is DENIED.
REPORT AND RECOMMENDATION
MARK R. ABEL, United States Magistrate Judge.
This matter is before the Magistrate Judge pursuant to the Motion of Plaintiff DWC Company to Remand (Docs.7, 11). For the reasons stated herein, I RECOMMEND that the Motion be DENIED.
This case was filed in Franklin County Municipal Court on February 26, 2008. Plaintiff DWC Company Inc. (“DWC”) brought an action under 49 U.S.C. § 14706, called the “ Carmack Amendment”; its Complaint sought as relief $9,355.11 in damages, pre-judgment interest, and attorney fees. (Doc. 3.) On July 23, 2008, Defendant CSX Transportation Inc. (“CSX”) removed the case to this court. (Doc. 2.) On August 21, 2008, DWC filed a motion to remand (Doc. 7); the Court later, on October 20, 2008, accepted a supplemental brief correcting this motion. (Doc. 11.) On November 14, 2008, CSX filed its memorandum contra. (Doc. 18.) Although it had the option to do so, DWC did not file a reply brief in support of its motion to remand by the November 25, 2008 deadline set by the Court. (Doc. 12 at 2.)
The federal removal statute, 28 U.S.C. § 1441, states in relevant part that: “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant [ … ]” The Carmack Amendment, however, creates a small exception to a federal court’s jurisdiction. Under 28 U.S.C. § 1337(a), a district court has original jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce”, except that “the district courts shall have original jurisdiction of an action brought under 11706 or 14706 of title 49, only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs.”The federal statute providing for nonremovable actions reiterates that a civil action brought under 49 U.S.C. § 14706 may not be removed unless the matter in controversy exceeds $10,000. 28 U.S.C. § 1445(b).
Therefore, under 28 U.S.C. § 1441 and 28 U.S.C. § 1337(a) this action, as it was brought under the Carmack Amendment, could only be properly removed to this court if the amount in controversy were greater than $10,000. DWC has filed a motion to remand, noting that the amount sought in the Complaint is $9,355.11, exclusive of interest and costs. Thus, argues DWC, this court has no jurisdiction over this action, and should remand it to the Franklin County Municipal Court.
However, CSX argues that the amount in controversy does exceed $10,000. It attaches as Exhibit B to its memorandum contra a letter from Plaintiff’s counsel, dated July 21, 2008, and reading, in its entirety:
Dear Mr. Hatch:
Our client demands fifteen thousand dollars ($15,000), to settle this above mentioned case. Please consider this offer with your client. If you have any questions, please feel free to contact me at (330) 725-7252.
Sincerely,
Chad A. Fine
The statute delineating the procedure for removal, 28 U.S.C. § 1446, provides for actions which might become removable after their initial filing. It specifically holds that:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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) (emphasis added).
Courts have found that an “other paper” newly demonstrating that an action is removable may come from a variety of sources. In Peters v. Lincoln Elec. Co., 285 F.3d 456 (6th 2002), the Sixth Circuit Court of Appeals held that a plaintiff’s answers to questions in deposition could constitute an “other paper” revealing that an action was removable. Id. at 465-66.Although the Sixth Circuit does not appear to have directly examined the question, numerous other courts have held that “other papers” can reveal that a jurisdictional amount-in-controversy threshold has been reached. See, e.g., Addo v. Globe Life and Acc. Ins. Co., 230 F.3d 759, 761-62 (5th Cir.2000) (interrogatory responses, post-complaint settlement offer); In re Willis, 228 F.3d 896, 897 (8th Cir.2000) (filed “Offer of Judgment”); Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072, 1078 (10th Cir.1999) (deposition testimony); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (deposition testimony).See also, Bankhead v. American Suzuki Motor Corp., 529 F.Supp.2d 1329, 1333 (M.D.Ala.2008) (post-complaint settlement offer); Stramel v. GE Capital Small Business Finance Corp., 955 F.Supp. 65, 67 (E.D.Tex.1997) (post-complaint settlement offer); Rodgers v. Northwestern Mut. Life Ins. Co., 952 F.Supp. 325, 327 (W.D.Va.1997) (post-complaint settlement offer); 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3732 (1998) (“correspondence between the parties and their attorneys or between the attorneys usually [is] accepted as [an] “other paper”).
The Peters plaintiff ostensibly brought suit for age discrimination under state law, but admitted in deposition that he was really alleging violations of ERISA. Peters, 285 F.3d at 465.
Plaintiff’s counsel sent Defendant’s counsel a letter on July 21, 2008, after the inception of this case, demanding $15,000 to settle the matter. Where a subsequent settlement demand exceeds the amount actually pled in the original complaint, a defendant can ascertain from the settlement demand the actual amount in controversy. Addo, 230 F.3d at 761-762. Defendant CSX could ascertain from the letter of July 21, 2008 that more than $10,000 was at controversy in this case. Therefore, this court can exercise jurisdiction under 28 U.S.C. § 1337(a) and 49 U.S.C. § 14706, and this action was properly removed.
Defendant timely filed its notice of removal two days later, on July 23, 2008.
Accordingly, I RECOMMEND that the Motion to Remand (Docs.7, 11) be DENIED.If any party objects to this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this Report and Recommendation, and the party thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1)(B); Rule 72(b), Fed.R.Civ.P.
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgement of the District Court. Thomas v. Arn, 474 U.S. 140, 150-52, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).See also, Small v. Secretary of Health and Human Services, 892 F.3d 15, 16 (2d Cir.1989).
