IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TREMONG KNIGHT, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0328-WS-L

 )

GEORGIA-PACIFIC CORP., )

 )

Defendant. )

ORDER 

On June 3, 2005, defendant Georgia-Pacific Corp. (“Georgia-Pacific”) removed this action

from the Circuit Court of Monroe County, Alabama, asserting that this Court has subject matter

jurisdiction based on federal question and diversity of citizenship. (Doc. 1). Although the plaintiff has

not filed a motion to remand, federal courts are of limited jurisdiction, and this Court has an

independent and continuing obligation to confirm its subject matter jurisdiction, even when the parties

do not question its existence. University of South Alabama v. American Tobacco Co., 168 F.3d

409, 411 (11th Cir. 1999); accord Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

The complaint consists of four counts, the latter two of which address only fictitious defendants. 

Count One is styled as a claim for “wrongful termination,” but the body of the count alleges that the

plaintiff was not afforded “his due process rights, as guaranteed in the Fourteenth Amendment of the

United States Constitution.” (Complaint, ¶ 14). Georgia-Pacific concludes that this statement supports

removal on the basis of federal question jurisdiction. (Doc. 1, ¶ 3).

“A federal court may dismiss a federal question claim for lack of subject matter jurisdiction only

if ... such a claim is wholly insubstantial and frivolous.” International Café, S.A.L. v. Hard Rock Café

International, Inc., 252 F.3d 1274, 1277 (11th Cir. 2001). While the complaint invokes the

Fourteenth Amendment, “a Fourteenth Amendment claim must include some element of state action. 

Purely private actions are not subject to the strictures of the Fourteenth Amendment.” Davis v. Cluet,

Peabody & Co., 667 F.2d 1371, 1373 (11th Cir. 1982). Absent any express allegation of state action

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1

 E.g., Hitch v. Laws, 2000 WL 1005888 at *2 (S.D. Ala. 2000)(“Defendants can discharge

the burden ‘by presenting sufficient evidence that a verdict rendered in favor of [plaintiffs] would

exceed $75,000.’”)(quoting Holman v. Montage Group, 79 F. Supp. 2d 1328, 1330 (S.D. Ala.

1999); accord Lowe’s OK’d Used Cars, Inc. v. Acceptance Insurance Co., 995 F. Supp. 1388,

1393 (M.D. Ala. 1998)(“In a diversity action where the plaintiff has not made a specific request for

damages, the ultimate question the court addresses is whether a defendant has established by a

preponderance of the evidence that should the plaintiff prevail on a particular claim, the plaintiff, more

likely than not, will recover in excess of the federal jurisdictional prerequisite.”).

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or any plausible basis for divining an implicit allegation, a mere reference to the Fourteenth Amendment

furnishes no subject matter jurisdiction in the federal courts. Id. Because the complaint appears to fall

within Davis, it has failed to demonstrate that removal was proper on the basis of federal question

jurisdiction.

The style of the complaint names only Georgia-Pacific and several fictitious defendants. The ad

damnum clauses of Counts One and Two, however, demand judgment “against Defendant, Sam

Spencer as an individual and in his employment as Supervisor of Georgia Pacific Corporation.” 

(Complaint at 3, 4). Because Spencer is employed at Georgia-Pacific’s plant in Peterman, Alabama,

(Spencer Affidavit), it is at least likely that he, like the plaintiff, is a citizen of Alabama. Because

Georgia-Pacific has neither explained how Spencer’s citizenship can be ignored nor shown that he is

not a citizen of Alabama, it has failed to demonstrate that removal was proper on the basis of diversity

jurisdiction. 

“[W]e hold that where a plaintiff has made 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 $[75],000 jurisdictional requirement.” Tapscott v. MS Dealer

Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), overruled on other grounds, Cohen v. Office

Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Because the plaintiff has made an unspecified demand

for damages, the Tapscott standard applies here. Under Tapscott, a defendant must show that, if the

plaintiff prevails on liability, it will more likely than not be awarded over $75,000.1

Georgia-Pacific notes that the plaintiff was terminated on June 28, 2004 and estimates that he

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2The plaintiff’s wage rate at the time of termination was $12.87 per hour. (Spencer Affidavit). 

That rate multiplied by 2,080 (the maximum number of regular hours in a year) totals $26,769.60. 

3At least some of the reasons for this judicial skepticism are readily apparent. First, many

factors influence the award of damages, and these factors are ordinarily heavily fact-intensive. 

Second, reliance on published appellate opinions predictably skews the results because appeals are

more likely after a large award than a smaller one. This slant becomes more pronounced when the

defendant selectively reports only those published awards favoring its position. 

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has accrued back wages of approximately $30,000.2 It concludes without explanation that, if the

plaintiff prevails in this action and is awarded reinstatement as he requests, his claim would be worth

over $75,000. (Doc. 1 at 3). This is certainly a possible outcome, but Georgia-Pacific has not shown

that it is more likely than not to occur. The most obvious flaw in its reasoning is its failure to consider

the effect of income the plaintiff may have earned from alternate employment since his termination,

which earnings would of course reduce the amount of damages he could be awarded in this action.

Georgia-Pacific also cites five cases in which plaintiffs in “wrongful termination” cases were

awarded more than $75,000. (Doc. 1, Exhibit B). It is easy enough to find cases in which substantial

damages were awarded, but “mere citation to what has happened in the past does nothing to overcome

the indeterminate and speculative nature of [a defendant’s] assertion” that the amount in controversy in

a particular case exceeds $75,000. Federated Mutual Insurance Co. v. McKinnon Motors LLC,

329 F.3d 805, 809 (11th Cir. 2003).3 

In sum, Georgia-Pacific’s removal papers fail to carry its burden of establishing the existence of

this Court’s subject matter jurisdiction. Accordingly, Georgia-Pacific is ordered to file and serve, on

or before June 15, 2005, any supplemental memorandum and/or evidentiary materials supporting its

position that subject matter exists. The plaintiff is ordered to file and serve any response on or before

June 24, 2005. The Court will take the issue of its subject matter jurisdiction under submission on

June 27, 2005.

DONE and ORDERED this 6th day of June, 2005.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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