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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

CLARENCE GLENN, )

)

Plaintiff, )

)

v. ) Civil Action No.: 3:06 CV 789

)

MARICA MONTGOMERY, et al., )

)

Defendants. )

PLAINTIFF’S PETITION TO REMAND 

CASE TO STATE COURT

COMES NOW the Plaintiff, Clarence Glenn, by and through his counsel of record, and

hereby petitions this Honorable Court to remand this cause of action to state court and in support

thereof, states as follows:

1. The Plaintiff, Clarence Glenn, filed his complaint in the Circuit Court of Macon

County, on March 27, 2006, against Marica Montgomery (hereafter

“Montgomery”), as well as other fictitious defendants. The complaint sought

relief for the negligence and wantonness of the Defendants, arising out of an

automobile accident occurring on April 13, 2005.

2. Montgomery sought to and did remove the case to federal court, asserting that

there was complete diversity between the plaintiff and defendant, as well as an

excess of $75,000 sought in damages. The defendant, however, has not fulfilled

her burden in establishing diversity jurisdiction under 28 U.S.C. § 1332 (a). It is

well established that a defendant, when removing a case to federal court, must

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show “by a preponderance of the evidence, facts supporting jurisdiction.” Burns

v. Windsor Ins. Co., 31 F.3d 1092 (11 Cir. 1994) (citing McNutt v. General th

Motors Acceptance Corp., 298 U.S. 178 (1936). The defendant has failed to

fulfill this burden.

3. Montgomery asserts in her Notice of Removal that she is a resident of Texas.

(Defendant’s Notice of Removal, p. 1) However, there is no affidavit or

testimony by the Defendant indicating that she is, in fact, a resident of the state of

Texas. Furthermore, it is indisputable that Montgomery was served with an Alias

Summons on or about August 3, 2006 by Sheriff at an address in Tuskegee,

Alabama.

4. In an attempt to fulfill the second prong of the two-part test for subject matter

jurisdiction under 28 U.S.C. § 1332 (a), the defendant conclusively alleges in its

Notice of Removal that “the Plaintiff herein seeks an amount and alleges an

amount in controversy greater than $75,000, exclusive of interests [sic] and

costs.” (Defendant’s Notice of Removal, p. 1). The defendant bases this

statement on a prior settlement demand letter (Exhibit “B” to Defendant’s Notice

of Removal) sent to the defendant’s insurer – a letter authored by the plaintiff’s

former attorney, prior to the involvement of the undersigned attorneys of record. 

The plaintiff is not represented by Albert Bulls, Esq., the author of the letter, and

no such settlement demand has been made by the undersigned attorneys. 

5. The indeterminate ad damnum clause contained in the complaint “does not show

that the case is not removable; it simply does not comment on federal

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jurisdiction.” Robinson v. Quality Ins. Co., 633 F.Supp. 572, 574 (S.D. Ala.

1986)). It is well-settled that when a plaintiff makes an unspecified demand for

damages in state court, “a removing defendant must prove by a preponderance of

the evidence that the amount in controversy more likely than not exceeds...the

jurisdictional requirement.” Tapscott v. MS Dealer Svc. Corp., 77 F.2d 1353,

1357 (11 Circ. 1996), overruled on other grounds by Office Depot v. Cohen, 204 th

F.3d 1069 (11 Cir. 2000). th

6. However, as is shown by the attached affidavit, the plaintiff does not, in fact, seek

damages exceeding the $75,000.00 jurisdictional requirement. (See Plaintiff’s

Affidavit, attached hereto). In fact, the plaintiff has not sought damages more

than the jurisdictional requisite of $75,000 at any time – including when the

lawsuit was filed, when the case was removed to federal court, nor at the present

time. (See Plaintiff’s Affidavit, p. 2) 

7. Affidavits like the one attached to this petition have been relied upon by the 11th

Circuit Court in determining whether or not subject matter jurisdiction exists. In

Williams v. Best Buy Company, 269 F.3d 1316 (11 Cir. 2001), it was not evident th

from the face of the complaint whether or not the requisite amount of damages

was being sought by the plaintiff. The court stated that although it had “not

explicitly articulated the proper procedure for determining the amount in

controversy on removal, we have suggested the approach that district courts

should take in making such a determination.” Id. at 1319. The court looked to its

previous holding in Sierminski v. Transouth Fin. Corp., 216 F.3d 945 (11 Cir. th

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2000), in which it relied on an approach taken by the Ninth Circuit and “held that

a district court may properly consider post-removal evidence in determining

whether the jurisdictional amount was satisfied at the time of removal.”

8. Furthermore, the court held that “a conclusory allegation in the notice of removal

that the jurisdictional amount is satisfied, without setting forth the underlying

facts supporting such an assertion, is insufficient to meet the defendant’s burden.” 

Williams at 1320.

9. In Moss v. Voyager Ins. Companies, 43 F. Supp.2d 1298 (M.D. Ala. 1999), the

district court remanded the case to circuit court based on a binding stipulation

similar to the affidavit attached to this reply. In particular, the plaintiff in Moss

stated “‘that under no circumstances shall Plaintiff seek nor accept more than

$75,000 even if the jury verdict exceeds that amount.’” Id. at 1300 (quoting Pl.’s

Stipulation). It was this language, the court stated, which “clarifies the

Complaint by identifying that the amount in controversy will not be in excess of

$75,000.” Id. at 1303. Furthermore, in considering the plaintiff’s stipulation,

“‘the court is still examining the jurisdictional facts as of the time the case is

removed, but the court is considering information submitted after removal.’” Id.

(quoting Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de

Columbia (ANPAC) V. Dow Quimica de Columbia, S.A., 988 F.2d 559, 565 (5th

Cir. 1993).

10. Therefore, a district court may properly consider post-removal evidence, which in

this case is the plaintiff’s affidavit, to determine whether or not the jurisdictional

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requirement is fulfilled. The defendant’s conclusory allegations that the

plaintiff’s claim will exceed $75,000.00 fails to fulfill her burden, and is

explicitly rebutted by the plaintiff’s affidavit stating no more than $75,000.00 in

damages will be sought.

11. Based on such evidence, the defendant’s burden of proving federal jurisdiction

has not been fulfilled, and jurisdiction lies properly in the state court.

Accordingly, the case should be remanded to the circuit court of Macon County.

WHEREFORE, the plaintiff, Clarence Glenn, respectfully petitions this honorable Court

to remand this case to the circuit court of Macon County, Alabama. 

Respectfully Submitted,

 /s/ Lindsey O. Hill 

Lawrence T. King

Lindsey O. Hill

Attorneys for Plaintiff, Clarence Glenn

OF COUNSEL:

Goozée, King & Horsley

Shades Brook Building

3300 Cahaba Road, Suite 200

Birmingham, Alabama 35223

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been 

furnished by U.S. Mail, postage prepaid and properly addressed, on this 28th day of 

 September , 2006, to:

Alex L. Holtsford, Jr.

Jeffrey G. Hunter

Nix, Holtsford, Gilliland

Higgins & Hitson, P.C.

P.O. Box 4128

Montgomery, Alabama 36103-4128

 /s/ Lindsey O. Hill 

Of Counsel

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