1

West is not a Defendant in this action.

 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ELIZABETH L. WARD, as : 

Administratrix and personal : 

representative of the Estate of : 

CLIFTON DEVON WARD, : 

: 

Plaintiff, : 

: 

vs. : CIVIL ACTION 09-0683-CG-M 

: 

UOP LLC, et al., : 

: 

Defendant. : 

REPORT AND RECOMMENDATION

The Motion to Remand filed by Plaintiff (Docs. 9-10) has

been referred for report and recommendation, under 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2. Jurisdiction has been invoked

in this Court under 28 U.S.C. § 1332, pursuant to the diversity

of the parties. After consideration, it is recommended that

Plaintiff’s Motion be granted and that this action be remanded

back to the Mobile County Circuit Court for all further

proceedings. 

The facts, very briefly, are as follows. Clifton Devon Ward

is the late husband of Plaintiff Elizabeth L. Ward; Clifton, who

was employed by G.A. West Company, Inc.,1 was killed in an

accident while working at the facilities of Defendant UOP LLC,

located in Chickasaw, Alabama on April 8, 2009 (Complaint, ¶¶ 1-

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The Complaint can be found at Doc. 3, pp. 113-19.

2).2 As the Administratrix of her husband’s estate, Plaintiff

brought this action in the Mobile County Circuit Court, raising

claims of negligence and wantonness in his wrongful death

(Complaint). The claims were brought against Defendants UOP LLC,

Plant Manager Alfred L. Cutrone, and Plant Safety Managers Jason

Novak and Gary Dunn (Complaint, ¶¶ 3-5). The Defendants removed

the action to this Court on October 15, 2009 (Docs. 1, 3). On

November 12, Ward filed a Motion to Remand (Docs. 9-10);

Defendants have responded to the motion (Docs. 16-17) to which

Plaintiff has replied (Doc. 18).

In its removal petition, Defendants allege that this Court

has diversity jurisdiction under 28 U.S.C. § 1332 and that this

action is removable pursuant to 28 U.S.C. § 1446(a) (Doc. 1). In

a removal action, the party asserting jurisdiction has the burden

of establishing proof of jurisdiction by a preponderance of the

evidence. McNutt v. General Motors Acceptance Corp. of Indiana,

Inc., 298 U.S. 178 (1936); see also Lowery v. Alabama Power Co.,

483 F.3d 1184, 1210 (11th Cir. 2007), cert. denied sub nom Hanna

Steel Corp. v. Lowery, 128 S.Ct. 2877 (2008). In a removal

action, that burden is upon the defendants. Wilson v. Republic

Iron & Steel Co., 257 U.S. 92 (1921). Removal is a statutory

remedy which must be narrowly construed so as to limit federal

jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941); Robinson v. Quality Ins. Co., 633 F.Supp. 572 (S.D. Ala.

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1986). 

The Court notes that any civil action over which the

district court would have original jurisdiction may be removed by

the defendants to the district court for the district in which

the action is pending. 28 U.S.C. § 1441(a). The district court

has jurisdiction over actions between citizens of different

states so long as all plaintiffs are diverse from all defendants,

Strawbridge v. Curtiss, 7 U.S. 267 (1806), and the amount in

controversy exceeds $75,000. 28 U.S.C. § 1332(b). 

In this action, the parties do not agree on whether the

parties are actually diverse or the amount in controversy. The

Court will take up the second of these prongs as it will dispose

of the Motion and render unnecessary a discussion of the first

prong. 

The query before the Court is the amount in controversy. As

noted earlier, for this Court to entertain jurisdiction over this

action, it will be necessary for Defendant UOP to demonstrate

that the amount in controversy exceeds $75,000. 

In the Complaint, Plaintiff seeks “punitive damages against

the [] Defendants in an amount to be determined by the jury for

the wrongful death of her deceased husband” (Complaint, pp. 4,

6). This is the only statement in the Complaint regarding the

value of this case. 

In removing this action, Defendants assert their “statutory

right to a federal forum” and urge the Court to consider “the

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fact that Plaintiff’s counsel consistently values [wrongful

death] cases in excess of $75,000" (Doc. 1, ¶ 22, 26). As

support, Defendants direct this Court’s attention to six cases in

which Plaintiff’s counsel has been successful in presenting his

clients’ cases to the jury (Doc. 1, ¶ 25). 

The Court notes, however, that the Eleventh Circuit Court of

Appeals, in Lowery, held that a party cannot determine the

jurisdictional value of a case by gathering evidence from outside

sources. Lowery, 483 F.3d at 1221. Specifically, the Court

stated as follows:

Defendants must establish the jurisdictional

amount by a preponderance of the evidence. 

We note, however, that in situations like the

present one-where damages are unspecified and

only the bare pleadings are available-we are

at a loss as to how to apply the

preponderance burden meaningfully. We have

no evidence before us by which to make any

informed assessment of the amount in

controversy. All we have are the

representations relating to jurisdiction in

the notice of removal and the allegations of

the plaintiffs' [] complaint. As such, any

attempt to engage in a preponderance of the

evidence assessment at this juncture would

necessarily amount to unabashed guesswork,

and such speculation is frowned upon. See

Lindsey v. Ala. Tel. Co., 576 F.2d 593, 595

(5th Cir.1978) (noting, in a removed class

action, that “it was not open for defendants

to attempt to show” the requisite amount in

controversy per capita where the complaint

made insufficient allegations, “[n]or was it

open to the district court to speculate” on

whether the jurisdictional facts existed).

[W]e conclude that the removal-remand

scheme set forth in 28 U.S.C. §§ 1446(b) and

1447(c) requires that a court review the

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propriety of removal on the basis of the

removing documents. If the jurisdictional

amount is either stated clearly on the face

of the documents before the court, or readily

deducible from them, then the court has

jurisdiction. If not, the court must remand.

Under this approach, jurisdiction is either

evident from the removing documents or remand

is appropriate. 

Lowery, 483 F.3d at 1211-12. More specifically, though, Lowery

addresses the type of evidence that Defendants have placed before

the Court to gain jurisdiction in this forum:

[W]e note that this evidence regarding the

value of other tort claims was not received

from the plaintiffs, but rather was gathered

from outside sources. As such, the evidence

is not of the sort contemplated by § 1446(b). 

Even if the defendants had received the

evidence of other suits from the plaintiffs,

we question whether such general evidence is

ever of much use in establishing the value of

claims in any one particular suit. Looking

only to this evidence and the complaint, the

facts regarding other cases tell us nothing

about the value of the claims in this

lawsuit.

Lowery, 483 F.3d at 1221. Lowery’s words hold true here as well: 

The jury verdicts which have been provided to this Court provide

no information relevant to this action. Though Defendants urge

this Court to find Lowery’s holding unconstitutional, (Doc. 16,

pp. 19-22), this Court declines to do so.

The Court finds that the amount in controversy is not

readily deducible from the documents before the Court. 

Defendants have failed to meet its burden of proving, by a

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preponderance of the evidence, that the amount in controversy

here meets the jurisdictional requirement of $75,000. As such,

this action has been improperly removed to this Court.

Therefore, it is recommended that Plaintiff’s Motion to

Remand (Docs. 9-10) be granted and that this action be remanded

back to the Mobile County Circuit Court for all further

proceedings.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within fourteen days after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

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to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 21st day of January, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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