United States District Court for the Western District of Oklahoma

July 15, 2022, Decided; July 15, 2022, Filed

No. CIV-22-327-R

Reporter

2022 U.S. Dist. LEXIS 125575 *

CECIL WAYNE GREGORY, Plaintiff, v. LINDAMOOD HEAVY HAULING, INC., a foreign for-profit corporation; and JOHN RYAN THEOBALT, an individual, Defendant.

Core Terms

negligent entrustment, ratification, pleadings, negligent hiring, training, supervision, driver, respondeat, reckless, argues

Counsel:  [*1] For Cecil Wayne Gregory, an individual, Plaintiff: Greg S Keogh, LEAD ATTORNEY, Parrish DeVaughn Injury Lawyers, Oklahoma City, OK; Nathan D Rex, LEAD ATTORNEY, Parrish Devaughn Law Firm, Oklahoma City, OK; Logan Maxwell Wexler, I, Arnold & Itkin, LLP, Houston, TX.

For Barbara Ann Whiteman, Plaintiff: James J Taylor, Sr, LEAD ATTORNEY, Taylor Lucas Locke & Corbin, Oklahoma City, OK; Kevin S Locke, Thomas B Corbin, LEAD ATTORNEYS, Taylor Lucas & Associates, Oklahoma City, OK.

For Lindamood Heavy Hauling Inc, a foreign for-profit corporation, John Ryan Theobalt, an individual, Defendants: Cody A Reihs, Thomas A Paruolo, DeWitt Paruolo & Meek, Oklahoma City, OK.

Judges: DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE.

Opinion by: DAVID L. RUSSELL

Opinion

ORDER

Before the Court is Defendant Lindamood Heavy Hauling, Inc.’s (“Lindamood”) Motion for Judgment on the Pleadings (Doc. No. 10) (“Motion”). Plaintiff Cecil Wayne Gregory filed a Response (Doc. No. 17), and Lindamood then filed a Reply (Doc. No. 18). For the reasons set forth below, the Court GRANTS Lindamood’s Motion.

On or about June 12, 2020, Plaintiff drove his automobile eastbound on Interstate-240 in Oklahoma City, Oklahoma, while Defendant John Ryan Theobalt (“Theobalt”) [*2]  traveled directly behind in a tractor-trailer. (Doc. No. 1 ¶¶ 9-10, 14; Doc. No. 9 ¶ 4). According to the Complaint, when the vehicles were near the Pennsylvania Avenue exit, Theobalt’s tractor-trailer struck Plaintiff’s automobile from behind, causing Plaintiff injury. (Doc. No. 1 ¶¶ 11-12).

Plaintiff filed this action on April 19, 2022, alleging negligence, gross negligence, and negligence per se against all Defendants as well as claims for respondeat superior; negligent hiring, training, supervision, retention, monitoring, and entrustment; and ratification against Lindamood. See generally Doc. No. 1. Lindamood then stipulated to the agency of its driver, Theobalt, imputing its liability under the theory of respondeat superior if Theobalt is found to be negligent. (Doc. No. 9 ¶ 10). Now, pursuant to Federal Rule of Civil Procedure 12(c), Lindamood moves for judgment on the pleadings as to all of Plaintiff’s claims for direct liability against it. (Doc. No. 10 ¶ 5).

Rule 12(c) provides that “after the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings “should not be granted unless the moving party has clearly established that no material [*3]  issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). Courts in the Tenth Circuit review motions for judgment on the pleadings “using the same standard that applies to a Rule 12(b)(6) motion.” Crane v. Utah Dep’t of Corr., 15 F.4th 1296, 1302 (10th Cir. 2021) (quoting Leiser v. Moore, 903 F.3d 1137, 1139 (10th Cir. 2018)).

Accordingly, the Court must determine whether the pleadings “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 1302-03 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1303 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). To satisfy this plausibility standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Seale v. Peacock, 32 F.4th 1011, 1021 (10th Cir. 2022) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). In reaching this determination, the Court must “accept all the well-pleaded allegations of the complaint as true and [ ] construe them in the light most favorable to the plaintiff.” Id. (internal quotation marks omitted) (quoting Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771 F.3d 697, 700 (10th Cir. 2014)).

Lindamood moves for judgment on the pleadings as to “Plaintiff’s claims of negligent hiring, [*4]  training, supervision, retention, and monitoring against Lindamood.” (Doc. No. 10 at 8). Lindamood argues that pursuant to the Oklahoma Supreme Court’s decision in Jordan v. Cates, 1997 OK 9, 935 P.2d 289 (Okla. 1997), Plaintiff cannot bring such claims for direct liability against Lindamood because Lindamood stipulated to its liability under the theory of respondeat superior. (Doc. No. 10 at 4, 8).

Plaintiff, however, argues that “[n]umerous Oklahoma state and federal trial courts have applied an impermissibly expansive interpretation of the limited holding in Jordan,” and that the Oklahoma Supreme Court’s subsequent decision in Fox v. Mize, 2018 OK 75, 428 P.3d 314 (Okla. 2018), “limited [Jordan] to cases involving an intentional tort or battery committed by an employee.” (Doc. No. 17 at 5-6). Additionally, Plaintiff claims that, pursuant to Rules 8(d)(2) and 8(d)(3) of the Federal Rules of Civil Procedure, “a plaintiff is entitled to pursue multiple, alternative theories of recovery.” (Id. at 10-11).

In Jordan, the Oklahoma Supreme Court held that in cases “where the employer stipulates that liability, if any, would be under the respondeat superior doctrine . . . any other theory for imposing liability on the employer [becomes] unnecessary and superfluous.” 935 P.2d at 293. See also N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592, 600 (Okla. 1999) (“Employers may be held liable for negligence in hiring, supervising or retaining an employee [*5]  . . . . if vicarious liability is not established.”). However, “[r]ecogniz[ing] the tension in [its] case law,” Fox, 428 P.3d at 322 n.12, the Court later held that because “an employer’s liability for negligently entrusting a vehicle to an unfit employee is a separate and distinct theory of liability from that of an employer’s liability under the respondeat superior doctrine,” “[a]n employer’s stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim,” id. at 322. While Fox calls the breadth of the Jordan decision into question, with the Court purportedly limiting Jordan to its facts, id. at 322 n.12, the Fox Court ultimately took pains to limit its decision to negligent entrustment claims. Id. at 322 (finding that “we need not determine whether a negligent hiring claim should be treated differently than a negligent entrustment claim” because the issue was not on appeal).

As numerous judges in this District have repeatedly concluded, Jordan remains good law, and this Court is obliged to follow it.¹ See Thurmond v. CRST Expedited, Inc., No. CIV-18-1142-R, 2019 U.S. Dist. LEXIS 203798, 2019 WL 6311996, at *1 (W.D. Okla. Nov. 25, 2019) (discussing Jordan and Fox, then “maintain[ing] the prior status of the law that claims for negligent hiring, training, and supervision are superfluous, where, as here, the employer has stipulated [*6]  that its employee was acting within the scope of employment at the time of the accident”).

Regarding Plaintiff’s claim that Fox limited Jordan to apply only to intentional torts, this Court has previously stated that it “cannot conceive of the nature of the tort as dispositive” because “[t]here is no logic to the notion that an employer would be directly liable for negligent hiring if its employee acted negligently, but not be liable if it negligently hires a person with a lengthy history of violence and the employee assaults a customer.” Cardenas v. Ori, No. CIV-14-386-R, 2015 U.S. Dist. LEXIS 61018, 2015 WL 2213510, at *2 (W.D. Okla. May 11, 2015). While the Fox decision “in word” limited Jordan to its facts, ultimately, the Oklahoma Supreme Court in that case “merely declin[ed] to extend the holding in Jordan to claims for negligent entrustment.” Estate of Ratley v. Awad, No. CV-19-00265-PRW, 2021 U.S. Dist. LEXIS 87809, 2021 WL 1845497, at *4 n.24 (W.D. Okla. May 7, 2021).²

Additionally, the Court rejects Plaintiff’s argument that the Federal Rules of Civil Procedure entitle him to pursue claims of direct liability against Lindamood as “multiple, alternative theories of recovery.” (Doc. No. 17 at 10). Plaintiff is correct that Rule 8(d)(2)-(3) of the Federal Rules of Civil Procedure entitles him to plead alternative, inconsistent causes of action, which he has done. See generally (Doc. No. 1). “The Court, however, is permitted [*7]  to remove those claims that are superfluous in accordance with Oklahoma law as set forth above.” Cardenas, 2015 U.S. Dist. LEXIS 61018, 2015 WL 2213510, at *3.

There is no dispute that Lindamood stipulated that Theobalt was acting within the course and scope of his employment at the time of the accident. (Doc. No. 9 ¶ 10). Therefore, applying Jordan, the Court grants Lindamood’s Motion as to Plaintiff’s claims for negligent hiring, training, supervision, retention, and monitoring.

Next, Lindamood asks the Court to dismiss Plaintiff’s negligent entrustment claim for failure to state a plausible claim under the pleading standard articulated by the Supreme Court in Twombly and Iqbal. (Doc. No. 10 at 8). In Oklahoma, an actionable claim for negligent entrustment of an automobile exists when (1) “a person who owns or has possession and control of an automobile allowed another driver to operate the automobile,” (2) “the person knew or reasonably should have known that the other driver was careless, reckless and incompetent,” and (3) “an injury was caused by the careless and reckless driving of the automobile.” Green v. Harris, 2003 OK 55, 70 P.3d 866, 871 (Okla. 2003). As to the second element, Lindamood argues that Plaintiff’s Complaint “contains no factual content regarding employee Theobalt’s driving history, [*8]  his propensity to drive unsafely, or any facts tending to show Lindamood knew or should have known of such propensity.” (Doc. No. 10 at 9) (emphasis removed). In response, Plaintiff argues that he did not allege such factual content “[b]ecause this information is only in Defendants’ possession” and the relevant facts “are not presently known to Plaintiff.” (Doc. No. 17 at 14). Thus, according to Plaintiff, “whether Plaintiff can meet his burden of proof on his negligent entrustment claim against Defendant should only be evaluated after the opportunity for discovery.” (Id.).

The Court agrees with Lindamood and finds that Plaintiff has failed to state a plausible claim. The only allegation Plaintiff offers in support of his negligent entrustment claim is that Lindamood “[p]rovided a vehicle and/or authority to Defendant Theobalt who was not properly trained and did not have the proper education, background, training or experience to safely operate the vehicle, and who was an incompetent and/or reckless driver.” (Doc. No. 1 ¶ 34). Without more, this claim does not allege sufficient factual matter to constitute a plausible claim that Lindamood knew or should have known that Theobalt was [*9]  a careless, reckless, or incompetent driver.

Further, the Court is unpersuaded by Plaintiff’s claim that he requires the “opportunity for discovery” to acquire enough factual information to put forth a plausible claim. While the Twombly/Iqbal standard “does not require detailed factual allegations” in the complaint, it nevertheless “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Equal Emp. Opportunity Comm’n v. Roark-Whitten Hosp. 2, LP, 28 F.4th 136, 150 (10th Cir. 2022) (quoting Iqbal, 556 U.S. at 678-79). Because Plaintiff asserts no factual allegations establishing that Lindamood knew or should have known that Theobalt was careless, reckless, or incompetent, the Court grants Lindamood’s Motion as to Plaintiff’s negligent entrustment claim.

Finally, Lindamood argues that Plaintiff’s ratification claim against Lindamood also fails to state a claim under the Twombly/Iqbal standard. (Doc. No. 10 at 10). The Complaint alleges that Lindamood “is responsible for the negligence and gross negligence of its driver under the theory of ratification” because Lindamood “[k]new of Defendant Theobalt’s tortious acts,” “[r]ecognized that Defendant Theobalt will likely continue to be negligent if he is retained,” “[f]ailed to take adequate measures to prevent Defendant [*10]  Theobalt from committing future tortious acts,” and “[o]therwise adopted, confirmed, or failed to repudiate Defendant Theobalt’s negligent and grossly negligent conduct after Defendant Lindamood gained knowledge of the conduct.” (Doc. No. 1 ¶ 35). The Court agrees and finds that Plaintiff has failed to state a plausible claim for ratification.³

In Oklahoma, “[r]atification is defined as the giving of sanction and validity to something done by another.” Shephard v. CompSource Oklahoma, 2009 OK 25, 209 P.3d 288, 293 (Okla. 2009). Ratification requires that one person acting on behalf of another “assumed to act as his agent in doing the act . . . without authority to do so,” and for ratification to be “valid and binding,” “it is essential that the principal have full knowledge of all material facts and circumstances relative to the unauthorized act or transaction.” Amazon Fire Ins. Co. v. Bond, 1917 OK 96, 65 Okla. 224, 165 P. 414, 418 (Okla. 1917).

Because Plaintiff makes no allegation that Theobalt was acting without Lindamood’s authorization, Plaintiff has failed to put forth a plausible claim that Lindamood ratified Theobalt’s allegedly tortious conduct. Ratification is the “after-the-fact sanctioning of the otherwise unauthorized actions of another party,” Gray v. Feed the Children, Inc., 2010 U.S. Dist. LEXIS 164450, 2010 WL 11607322, at *2 (W.D. Okla. May 21, 2010), but in this case, Lindamood acknowledges that at the time of the accident, Theobalt [*11]  “was acting within the course and scope of his employment with [Lindamood],” (Doc. No. 9 ¶ 10). Lindamood’s stipulation to vicarious liability negates Plaintiff’s ratification claim because, at the time of the accident, Theobalt acted as Lindamood’s agent with the company’s express authorization to do so. Therefore, the Court grants Lindamood’s Motion as to Plaintiff’s ratification claim.

For these reasons, the Court GRANTS Lindamood’s Motion for Judgment on the Pleadings. (Doc. No. 10). Accordingly, the Court DISMISSES Plaintiff’s claims against Lindamood for ratification and negligent hiring, training, supervision, retention, and monitoring, and DISMISSES WITHOUT PREJUDICE his claim for negligent entrustment.

IT IS SO ORDERED this 15th day of July 2022.

/s/ David L. Russell

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

End of Document

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¹ See Sinclair v. Hembree & Hodgson Constr., L.L.C., No. CIV-18-938-D, 2020 U.S. Dist. LEXIS 122527, 2020 WL 3965010, at *3 n.4 (W.D. Okla. July 13, 2020) (“Jordan v. Cates has not been overruled and remains good law, and the Court must follow it.”); Estate of Ratley v. Awad, No. CV-19-00265-PRW, 2021 U.S. Dist. LEXIS 87809, 2021 WL 1845497, at *4 (W.D. Okla. May 7, 2021) (“Though roundly criticized, now ‘limited to its facts,’ and ripe for reconsideration, courts continue to recognize Jordan v. Cates as good law requiring dismissal of negligent hiring, training, supervision, and retention claims where the employer admits the employee acted in the scope of their employment.”); Sykes v. Bergerhouse, No. CIV-20-333-G, 2021 U.S. Dist. LEXIS 47957, 2021 WL 966036, at *3 (W.D. Okla. Mar. 15, 2021) (agreeing “that Jordan remains viable”); Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 U.S. Dist. LEXIS 43724, 2019 WL 1246207, at *3 (W.D. Okla. Mar. 18, 2019) (“[Jordan] still remains good law and, in applying Oklahoma law, this Court is bound to follow it.”); Njuguna v. C.R. Eng., Inc., No. CV-19-379-R, 2020 U.S. Dist. LEXIS 195059, 2020 WL 6151567, at *3 (W.D. Okla. Oct. 20, 2020) (noting “the Court’s obligation to follow Jordan when it is applicable”); CTC, Inc. v. Schneider Nat’l Inc., No. CIV-20-1235-F, 2021 U.S. Dist. LEXIS 105319, 2021 WL 2295512, at *2 n.3 (W.D. Okla. June 4, 2021) (“Although Fox suggests the Oklahoma Supreme Court might back further away from Jordan, so far the Court has not done so.”).

² Plaintiff unpersuasively relies on two outlier cases to support his proposition that this Court’s interpretation of Jordan is “impermissibly expansive.” (Doc. No. 17 at 5). In the first, Ramiro v. J.B. Hunt Transp. Servs., No. 23, CIV-04-1033-M, at 5, 2005 U.S. Dist. LEXIS 50579 (W.D. Okla. Apr. 8, 2005), the court determined that the “narrower language of [Jordan‘s] syllabus” referencing the battery underlying that case suggested that “the holding in Jordan is limited to cases involving intentional torts.” This Court agrees with later decisions rejecting the Ramiro R. court’s interpretation of Jordan. See, e.g., Payne v. Sesley Trucking, LLC, No. CIV-16-1235-F, 2017 U.S. Dist. LEXIS 227140, 2017 WL 11139577, at *4 n.8 (W.D. Okla. Oct. 24, 2017) While “the [Jordan] Court clearly ‘limited [its holding] to those situations where the employer stipulates that liability, if any, would be under the respondeat superior doctrine,’ it did not simultaneously limit its holding only to intentional torts.” (quoting Jordan, 935 P.2d at 293)).

Plaintiff’s second case, Stalnaker v. Three Bros. Transp., LLC, 20-CV-00140-JED-CDL (N.D. Okla. Jan. 31, 2022), hinged on the Northern District of Oklahoma’s prediction as to how the Oklahoma Supreme Court would rule if presented the opportunity to review its Jordan decision. (Doc. No. 10 at 7). “To properly discern the content of state law, we ‘must defer to the most recent decisions of the state’s highest court.'” Kokins v. Teleflex, Inc., 621 F.3d 1290, 1295 (10th Cir. 2010) (quoting Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir. 2017)). As discussed above, this Court interprets Fox, the Oklahoma Supreme Court’s most recent decision on the matter, as merely extending Jordan to claims for negligent entrustment, not as limiting that decision to apply only to intentional torts.

³ The parties dispute whether an independent cause of action exists under a theory of ratification. (Doc No. 10 at 10; Doc. No. 17 at 15). It appears likely that Lindamood correctly asserts that ratification “is a function of Oklahoma’s vicarious liability law, used to impose liability on corporations for a variety of torts committed by their agents.” (Doc. No. 10 at 10) (quoting Gray v. Feed the Children, Inc., No. CIV-09-662-D, 2010 U.S. Dist. LEXIS 164450, 2010 WL 11607322, at *2 (W.D. Okla. May 21, 2010)). Ultimately, the Court need not decide this issue because, even assuming such a cause of action exists, the agent’s unauthorized use and the principal’s knowledge are requisite elements for ratification, and Plaintiff has not pleaded sufficient factual allegations as to both of these elements.

United States District Court for the Southern District of Alabama, Southern Division

July 18, 2022, Decided; July 18, 2022, Filed

CIVIL ACTION NO. 22-0187-KD-MU

Reporter

2022 U.S. Dist. LEXIS 126797 *

CLARENCE L. ROBERTS, et al., Plaintiffs, v. BENTARIUS FONTA STEWART, et al., Defendants.

Core Terms

removal, amount in controversy, damages, past and future, injuries, trailer, permanent, facially, exceeds, report and recommendation, punitive damages, accident report, recommendation, Notice, courts

Counsel:  [*1] For Clarence L. Roberts, Arkyla Miller, Plaintiff: William Bradford Kittrell, LEAD ATTORNEY, WBK, P.C., Daphne, AL USA.

For Bentarious Fonta Stewart, Unlimited Deliveries LLC, doing business as | MK-Trucking |, Defendants: Albert Trousdale, II, LEAD ATTORNEY, Trousdale Ryan, P.C., Florence, AL USA; Jonathan Keith Corley, LEAD ATTORNEY, Opelika, AL USA.

Judges: P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.

Opinion by: P. BRADLEY MURRAY

Opinion

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiffs’ Motion to Remand (Doc. 5), Defendants’ Response in Opposition to Plaintiffs’ Motion to Remand (Doc. 7), and Plaintiffs’ Reply in Support (Doc. 8). This motion has been referred to the undersigned Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen LR 72(a)(2)(S). Upon consideration of all relevant filings in this case and the applicable law, the undersigned recommends that Plaintiffs’ motion to remand be DENIED for the reasons set forth below.

I. Background

On April 7, 2022, Plaintiffs Clarence L. Roberts and Arkyla Miller, his wife, filed a complaint against Defendants Bentarius Fonta Stewart and Unlimited Deliveries, LLC d/b/a MK-Trucking in the Circuit Court of Mobile County, Alabama seeking [*2]  compensatory and punitive damages due to injuries they suffered from a motor vehicle accident with a commercial truck and trailer driven by Stewart and owned by Unlimited Deliveries. (Doc. 1-1). In his complaint, Plaintiff Clarence Roberts alleges claims for negligent and/or wanton operation of a vehicle against Stewart and negligent and/or wanton hiring, retention, monitoring, supervising and/or training against Unlimited Deliveries. (Id. at pp. 3-14). Plaintiff Arkyla Miller has asserted a loss of consortium claim. (Id. at p. 15).

Defendants filed a Notice of Removal, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, removing the action to this Court on May 6, 2022. (Doc. 1). In the notice of removal, Defendants alleged that removal was proper pursuant to 28 U.S.C. § 1332 because the action is between citizens of different states and the amount in controversy exceeds the sum of $75,000. (Id. at pp. 3-8). Plaintiff moved to remand this case on June 2, 2022, on the ground that Defendants failed to meet their burden of proving the amount in controversy exceeds the sum of $75,000. (Doc. 5).

II. Legal Analysis

Because Defendants removed this case to federal court, they have the burden of proving that federal jurisdiction exists.  [*3] See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001); Davidson v. Liberty Mut. Ins. Co., CA 16-0516-KD-C, 2016 WL 7428220, *5 (S.D. Ala. Dec. 8, 2016). Federal courts, being of limited jurisdiction, must “proceed with caution in construing constitutional and statutory provisions dealing with [their] jurisdiction.” Victory Carriers, Inc. v. Law, 404 U.S. 202, 212, 92 S. Ct. 418, 30 L. Ed. 2d 383 (1971), quoted in Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly,” and “all doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala., 168 F.3d at 411; see also Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (holding that any questions or doubts are to be resolved in favor of returning the case to state court). Defendants claim in this case that federal jurisdiction is proper based on diversity of citizenship. (Doc. 1). Therefore, Defendants bear the burden of establishing that both Plaintiffs are diverse from both Defendants and of proving by a preponderance of the evidence that the amount in controversy exceeds the $75,000 jurisdictional requirement. See Williams, 269 F.3d at 1319; Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).

Diversity of the parties is not at issue. The question presented is whether Defendants have met their burden of proving that the amount in controversy exceeds the jurisdictional limit. Plaintiffs’ complaint does not seek a specific amount of damages. (Doc. 1-1). The Complaint also does [*4]  not set forth any specific amount of medical expenses, lost wages, or any other special damages incurred. (Id.). In a case in which the complaint does not set forth a specific amount of damages, removal is proper if the requisite amount in controversy is “facially apparent from the complaint.” Williams, 269 F.3d at 1319. If the amount in controversy is not facially apparent, the court may look to the notice of removal and to evidence submitted that is relevant to the amount in controversy at the time the case was removed to determine if the jurisdictional requirement is met. Id. (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)).

In their complaint, Plaintiffs seek recovery of an unspecified amount of compensatory and punitive damages based on injuries Roberts received in a motor vehicle accident. (Doc. 1-1). Because the amount of damages sought is not readily determinable from the complaint, Defendants “‘must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds’ $75,000, exclusive of interest and costs.” Boehm v. Terminix Int’l Co. Ltd. P’ship, Civil Action 22-0001-WS-M, 2022 WL 229890, at *1 (S.D. Ala. Jan. 25, 2022) (quoting Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)). “In some cases, this burden requires the removing defendant to provide additional evidence demonstrating that removal is proper,” while in other cases, “it may be ‘facially apparent’ from [*5]  the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when ‘the complaint does not claim a specific amount of damages.'” Roe, 613 F.3d at 1061 (quoting Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010)) (footnote omitted). “Eleventh Circuit precedent permits district courts to make ‘reasonable deductions, reasonable inferences, or other reasonable extrapolations’ from the pleadings to determine whether it is facially apparent that a case is removable.” Roe, 613 F.3d at 1061-62 (11th Cir. 2010) (quoting Pretka, 608 F.3d at 754).

Defendants contend the Complaint on its face, bolstered by the Accident Report, sufficiently shows the Roberts damages claim exceeds $75,000.00, exclusive of interest and costs. Plaintiffs claim that Defendants have not met their burden of proof.

In the complaint, Plaintiffs state that Stewart was operating a commercial truck and trailer owned by Unlimited Deliveries when he negligently and wantonly ran a stop sign at Red Fox Road causing the truck and trailer to “violently crash” into the 2018 Honda Accord being operated by Roberts, who was traveling northbound on US Highway 43. (Doc. 1-1 at p. 6; PageID. 16). The complaint further states that a “high energy crash” occurred and Roberts’s vehicle was dragged underneath the trailer and was crushed. (Id.). [*6]  According to the complaint, the crash caused Roberts to “suffer significant personal injuries.” (Id.). Specifically, the complaint avers that Roberts suffered “serious bodily harm, personal injury, traumatic brain injury, medical bills (past and future), permanent physical impairment, permanent scarring, physical pain and suffering (past and future), mental anguish, medical expenses, financial loss, inconvenience, annoyance, loss of enjoyment and quality of life (past and future) and general damages.” (Id. at p. 8; PageID. 18). Miller, his wife, also seeks damages for loss of consortium, past and future. (Id. at p. 15; PageID. 25). Plaintiffs also seek punitive damages in this case. “While a request for punitive damages does not automatically establish the amount-in-controversy, a court may properly consider punitive damages in the evaluation of whether a defendant has shown that the amount-in-controversy is satisfied.” Fox v. Winn-Dixie Montgomery, LLC, Civ. A. No. 21-00306-CG-B, 2021 WL 4484564, at *6 (S.D. Ala. Sept. 13, 2021) (quoting Hogan v. Mason, Civ. A. No. 2:16-BE-1732-S, 2017 WL 1331052, at *3 (N.D. Ala. Apr. 11, 2017)).

The Accident Report, which was attached as an exhibit to the Notice of Removal, reflects that the accident occurred on March 15, 2022, when Stewart, who was driving a tractor-trailer eastbound at approximately [*7]  40 m.p.h. on Red Fox Road, failed to stop at the stop sign at the intersection of U.S. Highway 43 because his dog crawled underneath his legs preventing him from braking. (Doc. 1-2 at p. 4; PageID. 81). Roberts, who was traveling approximately 65 m.p.h. on Highway 43 in a Honda Accord, did not have time to brake and struck the flatbed trailer. (Id.). The flatbed trailer dragged the Accord down Harvill Road causing the Accord to strike the front of another vehicle. (Id.). The tractor-trailer came to rest down Harvill Road with its flatbed trailer on top of the Accord driven by Roberts. (Id.). EMS arrived on the scene approximately 13 minutes after the accident where Roberts was trapped in his vehicle. (Id. at pp. 3, 5; PageID. 80, 82). Roberts was transported by Mobile County EMS to the University of South Alabama Medical Center, and the driver of the vehicle that Roberts’s vehicle hit while it was being dragged was transported to Grove Hill Memorial Hospital by private vehicle. (Id. at p. 3; PageID. 80). Roberts’s vehicle was totaled. (Id.).

Roberts claims damages for “serious bodily harm, personal injury, traumatic brain injury, medical bills (past and future), permanent physical impairment, [*8]  permanent scarring, physical pain and suffering (past and future), mental anguish, medical expenses, financial loss, inconvenience, annoyance, loss of enjoyment and quality of life (past and future) and general damages.” (Doc. 1-1). The Eleventh Circuit has held that “[c]omplaints alleging serious, lasting physical injuries are typically removable because it is facially apparent that these claims are worth more than $75,000.” Hickerson v. Enter. Leasing Co. of Ga., LLC, 818 F. App’x 880, 883 (11th Cir. 2020) (citing Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)). In Hickerson, the Eleventh Circuit held that “[f]rom the alleged traumatic brain injuries alone, the district court could reasonably infer or deduce that the cost of treatment would satisfy the jurisdictional amount.” Hickerson, 818 F. App’x at 884.

While it is impermissible for courts to speculate on the amount in controversy, see Lowery v. Alabama Power Co., 483 F.31184, 1209, 1215 (11th Cir. 2007), courts are allowed to assess a plaintiff’s claim based on their judicial experience and common sense, see Rachel v. PNC Bank, N.A., Civ. A. 16-00351-KD-MU, 2017 WL 1362034, at *2-3 (S.D. Ala. Apr. 10, 2017). Both the complaint and the accident report show that Roberts suffered severe injuries and that his vehicle was totaled. Roberts’s vehicle, a Honda Accord, was crushed and drug by a tractor-trailer in a high-speed crash. The accident report states that neither driver was able to brake before impact. Roberts had [*9]  to be extracted from his vehicle and taken to a trauma hospital by ambulance. He has alleged damages for future medical bills, future physical pain and suffering, and future loss of enjoyment and quality of life, as well as traumatic brain injury, permanent physical impairment, and permanent scarring. The face of the complaint shows that Roberts’s injuries were serious and long lasting. Applying “judicial experience and common sense,” the Court concludes that it is facially apparent from the complaint, and further supported by the accident report, that the jurisdictional amount is satisfied.

III. Conclusion

Based on the foregoing, it is RECOMMENDED that Plaintiffs’ motion to remand be DENIED.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. Gen. LR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation [*10]  in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 18th day of July, 2022.

/s/ P. BRADLEY MURRAY

UNITED STATES MAGISTRATE JUDGE

End of Document