IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OLIN C. SCOTT, JR., :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION NO. 14-00417-CG-B

 : 

FORD MOTOR COMPANY, :

 :

Defendant. :

REPORT AND RECOMMENDATION

This case is before the Court on Plaintiff Olin C. Scott, 

Jr.’s Motion to Remand. (Doc. 2). The motion, which has been 

fully briefed and is ripe for resolution, has been referred to 

the undersigned for a report and recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c). Upon consideration 

of all matters presented, the undersigned RECOMMENDS, for the 

reasons stated herein, that Plaintiff’s Motion to Remand (Doc. 

2) be GRANTED.

I. Background Facts

Plaintiff, Olin C. Scott, Jr. (“Plaintiff”), commenced this 

personal injury action in the Circuit Court of Baldwin County, 

Alabama on May 19, 2014, against Defendant Ford Motor Company

(“Ford”) and various fictitious parties. (Doc. 1, att. 1 at 2). 

In the complaint, Plaintiff alleges that Defendant Ford is 

liable for fraud (Count One), fraud in the inducement (Count 

Two), breach of express warranty (Count Three), breach of 

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implied warranty (Count Four), and violation of the MagnusonMoss Warranty Act, 15 U.S.C. § 2301, et seq. (Count Five), for 

which he seeks an unspecified amount of compensatory, 

consequential, and punitive damages, as well as costs and 

attorney’s fees. (Id. at 4-8). 

According to Plaintiff, on December 31, 2013, he purchased 

a new Ford Escape SUV for $29,700. (Id. at 2). At the time of 

the purchase, Ford represented to Plaintiff that the vehicle was 

free of defects and extended express warranties related to same. 

(Id. at 2-3). On February 16, 2014, Plaintiff was driving the 

vehicle on Interstate 10 when the engine caught fire and 

rendered the vehicle a total loss. (Id. at 3-4). Plaintiff 

notified Ford that he desired a buy-back of the vehicle, and 

Ford refused to tender the purchase price. (Id. at 4). 

According to Plaintiff, the 2013 Ford Escape has been the 

subject of no fewer than ten recalls. (Id.). 

On September 8, 2014, Ford removed the case to this Court 

pursuant to 28 U.S.C. §§ 1441 and 1446. In the Notice of 

Removal, Ford asserts the existence of subject matter 

jurisdiction under § 1332.1 (Doc. 1 at 2). On September 9, 2014, 

 1 Plaintiff’s only objection to removal is that Defendant has 

failed to establish the requisite amount in controversy. (Doc. 

2).

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Plaintiff filed the instant motion seeking to remand this action 

to state court. (Doc. 2). Plaintiff contends that Defendant has 

failed to establish that the amount in controversy exceeds 

$75,000. (Doc. 2 at 4). The motion has been fully briefed and 

is now ready for resolution.

II. Standard of Review

As set forth above, this action was removed by Defendant 

Ford pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis of 

diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1). Title 

28 U.S.C. § 1441(a) provides, in relevant part:

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 or the defendants, to the district 

court of the United States for the district 

and division embracing the place where such 

action is pending. 

28 U.S.C. § 1441(a). 

In addition, 28 U.S.C. § 1446(b) provides in part:

The notice of removal of a civil action 

or proceeding shall be filed within 30 days 

after the receipt by the defendant, through 

service or otherwise, of a copy of the 

initial pleading setting forth the claim for 

relief upon which such action or proceeding 

is based, or within 30 days after the 

service of summons upon the defendant if 

such initial pleading has then been filed in 

court and is not required to be served on 

the defendant, whichever period is shorter.

. . . .

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(3) Except as provided in subsection 

(c), if the case stated by the initial 

pleading is not removable, a notice of 

removal may be filed within 30 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.

It is well established that, “[i]n a removal action, the 

party asserting jurisdiction has the burden of establishing 

proof of jurisdiction by a preponderance of the evidence.” 

Wiltew v. Parker, 2009 U.S. Dist. LEXIS 101741, *1-2, 2009 WL 

3615041, *2 (S.D. Ala. Oct. 30, 2009); Lowery v. Alabama Power 

Co., 483 F.3d 1184, 1210 (11th Cir. 2007)). In a removal 

action, the burden is upon the defendant. Id.; see also 

Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th 

Cir. 2008) (“A removing defendant bears the burden of proving 

proper federal jurisdiction . . . [and] [a]ny doubts about the 

propriety of federal jurisdiction should be resolved in favor of 

remand to state court.”)). In addition, “[b]ecause removal 

infringes upon state sovereignty and implicates central concepts 

of federalism, removal statutes must be construed narrowly, with 

all doubts resolved in favor of remand.” Holloway v. Morrow, 

2008 U.S. Dist. LEXIS 10318, *5, 2008 WL 401305, *2 (S.D. Ala. 

Feb. 11, 2008) (citing University of South Alabama v. American 

Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (explaining that 

strict construction of removal statutes derives from 

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“significant federalism concerns” raised by removal 

jurisdiction); see also Russell Corp. v. American Home Assur., 

Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (“Federal courts are 

courts of limited jurisdiction, and there is a presumption 

against the exercise of federal jurisdiction, such that all 

uncertainties as to removal jurisdiction are to be resolved in 

favor of remand.”). “Thus, under § 1446(b), in assessing the 

propriety of removal, the court considers the document received 

by the defendant from the plaintiff -- be it the initial 

complaint or a later received paper -- and determines whether 

that document and the notice of removal unambiguously establish 

federal jurisdiction.” Lowery, 483 F.3d at 1213.

Where the alleged basis for federal jurisdiction is 

diversity under 28 U.S.C. § 1332, the removing defendant has the 

burden of demonstrating that there is (1) complete diversity of 

citizenship and (2) an amount-in-controversy greater than 

$75,000. See 28 U.S.C. § 1332(a). With respect to the amount 

in controversy requirement, where the plaintiff “has not pled a 

specific amount of damages, the removing defendant must prove by 

a preponderance of the evidence that the amount in controversy 

exceeds the jurisdictional requirement.” Pretka v. Kolter City 

Plaza, II, Inc., 608 F.3d 744, 752 (11th Cir. 2010). A removing 

defendant need only show that “the amount in controversy more 

likely than not exceeds the . . . jurisdictional requirement.” 

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Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th 

Cir. 2010) (quoting Tapscott v. MS Dealer Serv. Corp., 77 F.3d 

1353, 1357 (11th Cir. 1996)). A removing defendant is not 

required “to prove the amount in controversy beyond all doubt or 

to banish all uncertainty about it.” Renfroe v. Allstate 

Property and Cas. Ins. Co., 2010 U.S. Dist. LEXIS 111336, *6, 

2010 WL 4117038, * 2 (S.D. Ala. Sept. 23, 2010) (quoting Pretka, 

608 F.3d at 754). “When the complaint does not claim a specific 

amount of damages, removal from state court is proper if it is 

facially apparent from the complaint that the amount in 

controversy exceeds the jurisdictional requirement.” Beasley v. 

Fred’s Inc., 2008 U.S. Dist. LEXIS 26210, *3-4, 2008 WL 899249, 

*1 (S.D. Ala. Mar. 31, 2008) (quoting Williams v. Best Buy Co., 

269 F.3d 1316, 1319 (11th Cir. 2001)). “If the jurisdictional 

amount is not facially apparent from the complaint, the court 

should look to the notice of removal and may require evidence

relevant to the amount in controversy at the time the case was 

removed.” Id. 

In addition, settlement offers “count[ ] for something” in 

determining whether a plaintiff’s claim exceeds the 

jurisdictional requirement of $75,000, exclusive of interest and 

costs. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.

1994). Courts within this district have held that a settlement 

demand is actually relevant evidence of the amount in 

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controversy if it includes specific information to reflect a 

reasonable estimate of the plaintiff’s claim. Jackson v. Select 

Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala.

2009). In addition, the Eleventh Circuit has made clear that 

“courts may use their judicial experience and common sense in 

determining whether the case stated in a complaint meets federal 

jurisdictional requirements.” Roe, 613 F.3d at 1062.

III. Analysis

In the complaint in this case, Plaintiff alleged that the 

total cash price of the automobile that was lost as a result of 

the engine fire was $29,700. (Doc. 1, att. 1 at 7). Plaintiff 

also alleged, but did not specify an amount for, other 

compensatory, consequential, and punitive damages flowing from 

the alleged fraud and breach of warranties by Ford, as well as 

attorney’s fees and costs. (Id., att. 1). 

Because the amount in controversy is not facially apparent 

from the complaint, the Court considers other relevant evidence 

of the amount in controversy in this case. The evidence shows 

that on September 4, 2014,2 Plaintiff’s counsel sent an email to 

counsel for Ford, extending a settlement demand, in which he 

stated in part: 

 2 At that point, Plaintiff’s discovery requests had been served 

but not answered by Ford. (Doc. 1, att. 5; Doc. 2 at 2; Doc. 11 

at 3).

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I’m sorry I missed your call the other day 

regarding settlement of this case. You left 

a message that you had some authority to get 

the case settled. I’m not sure what you had 

in mind but I usually do not settle a case 

or discuss settlement until I have finished 

discovery because many times, usually, I 

don’t know what kind of case I may have. 

Having said that, I will certainly take any 

and all settlement offers to the client. I 

will say that the client is angry and 

frustrated with Ford Motor Company. Early 

on he tried to settle with them and the 

person he was dealing with promised him a 

buyback. Based on that he purchased and 

financed a new Ford car and was going to use 

the buyback funds to pay off the purchase. 

(He had paid cash for the Escape). The only 

settlement demand I have authority for this 

time is $150,000. This will be a little 

over five times a purchase price of the 

Escape which was $29,700.

(Doc. 1, att. 3). 

In support of his Motion to Remand, Plaintiff argues that 

the settlement demand does not show that the amount in 

controversy in this case exceeds $75,000 but, rather, that it is 

merely a “barebones statement of a settlement position made in 

anticipation of further negotiations” that “falls well short of 

‘unambiguously’ qualifying the nature of Plaintiff’s claims.” 

(Doc. 2 at 6). Plaintiff further argues that the settlement 

demand “does not specify the nature of the damages sought, nor 

does it quantify those damages.” (Id.). Rather, Plaintiff 

states, it was merely an attempt to “gage the Defendant’s 

interest in settlement.” 

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Defendant Ford counters that Plaintiff’s demand of 

$150,000, described as “a little over five times a purchase 

price of the Escape”, though a lump sum, specifically relates to 

Plaintiff’s compensatory damages and, thus, is not vague, 

ambiguous, or speculative. (Doc. 10 at 3). 

This Court’ opinion in Jackson v. Select Portfolio 

Servicing, Inc., 651 F. Supp. 2d 1279, 1281-82 (S.D. Ala. 2009),

is instructive in this case. In Jackson, this Court stated: 

A settlement offer can of course constitute 

an “other paper” within the meaning of 28 

U.S.C. § 1446(b). Lowery v. Alabama Power 

Co., 483 F.3d 1184, 1213 n. 62 (11th Cir.

2007). The question is whether this 

specific settlement demand, given all the 

evidence presented, established by a 

preponderance of that evidence that the 

amount in controversy exceeds $75,000. . . . 

“While [a] settlement offer, by itself, may 

not be determinative, it counts for 

something.” Burns v. Windsor Insurance Co., 

31 F.3d 1092, 1097 (11th Cir. 1994). What 

it counts for, however, depends on the 

circumstances. Settlement offers commonly 

reflect puffing and posturing, and such a 

settlement offer is entitled to little 

weight in measuring the preponderance of the 

evidence. On the other hand, settlement 

offers that provide “specific information 

... to support [the plaintiff’s] claim for 

damages” suggest the plaintiff is “offering 

a reasonable assessment of the value of 

[his] claim” and are entitled to more 

weight. Golden Apple Management Co. v. Geac 

Computers, Inc., 990 F. Supp. 1364, 1368 

(M.D. Ala. 1998). The Court has adopted 

this as the correct analysis. . . . The 

defendants describe the plaintiffs’

settlement demand as “thoughtful and 

detailed,” . . . but it is not detailed in 

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any way that aids removal. The letter in 

question simply demands “[l]ump sum payment 

of $155,000,” without the slightest 

suggestion how in the world the plaintiffs 

could support such a figure. The only 

detail in the letter is contained in the 

succeeding two paragraphs, which discuss 

other, non-monetary relief the plaintiffs 

desired as well. The plaintiffs’ bald 

demand is properly construed as mere 

posturing. There is additional evidence to 

support this conclusion. Plaintiffs’

counsel submitted an affidavit reflecting 

that he repeatedly advised the defendants 

and their counsel that he had inadequate 

information to make a realistic settlement 

demand and that he was throwing out a figure 

only to stake out a settlement posture and 

to see if the defendants were serious about 

their suggestion of mediation before he 

agreed to incur that considerable expense. 

It might be possible to reject the affidavit 

as unworthy of credence, but the defendants 

suggest no reason the Court should do so. 

On the contrary, the affidavit makes perfect 

sense and reflects precisely why the 

judicial skepticism of unadorned settlement 

demands is warranted. . . . [E]ven had no 

affidavit been filed, under the cases cited 

above the settlement demand alone would not 

satisfy the defendants’ burden.

Jackson, 651 F. Supp. 2d at 1281-82.

As was the case in Jackson, the Court finds that the 

settlement demand in the instant case fails to tie the lump sum 

figure demanded ($150,000) to corresponding items of damage 

alleged in the complaint, and it fails to reflect a reasonable 

estimate by Plaintiff of the actual value of his loss. To the 

contrary, the demand appears to be speculative, skeptical, 

arbitrary, and based on mere puffing and posturing.

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As in Jackson, Plaintiff’s counsel in the instant case 

specifically advised that he did not know the value of the case 

(as it was pre-discovery) and that he was hesitant to even 

discuss a figure. He stated in his email: “I’m not sure what 

you had in mind but I usually do not settle a case or discuss 

settlement until I have finished discovery because many times, 

usually, I don’t know what kind of case I may have.” (Doc. 1, 

att. 3). Even though counsel did not know the value of the case 

at that time, he affirmed that he was “certainly [willing to] 

take any and all settlement offers to [his] client.” (Id.). 

Plaintiff’s counsel also informed Ford’s counsel that his client 

was “angry and frustrated with Ford Motor Company” because, 

early on, his client had been promised a “buyback” of the

automobile (ostensibly $29,700), which never happened. (Id.). 

With those qualifiers, Plaintiff’s counsel proposed a figure “a 

little over” five times the actual value of the vehicle or 

$150,000. (Id.). This evidence indicates, as did the evidence 

in Jackson, that Plaintiff’s counsel in the instant case “had 

inadequate information to make a realistic settlement demand and 

. . . was throwing out a figure only to stake out a settlement 

posture.” Id. , 651 F. Supp. 2d at 1282.

Because the settlement demand in this case does not reflect

a reasonable estimate of the actual value of Plaintiff’s fraud 

and warranty claims, it does not support Defendant’s argument 

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that the amount in controversy in this case exceeds $75,000. Cf.

Benandi v. Mediacom Southeast, LLC, 2011 U.S. Dist. LEXIS 

125084, *7-8, 2011 WL 5077403, *3 (S.D. Ala. September 30, 2011)

(where Plaintiff’s counsel’s letter demanded $92,000 and 

described in detail Plaintiff’s injuries, the costs incurred to 

date and anticipated, and specifically described the figure as 

“a conservative estimate,” it was not a speculative lump sum 

demand and was properly considered in denying motion to remand);

McKeel v. Hodum Trucking, LLC., 2012 U.S. Dist. LEXIS 93781,

*10-13 (S.D. Ala. June 18, 2012) (plaintiff’s demand letter 

seeking $232,653.58 could be considered in determining whether 

the actual amount in controversy exceeded $75,000 where the 

damages were broken down into identified, specific costs for 

past and future damages).

Having considered the allegations in Plaintiff’s complaint

specifying compensatory damages in the amount of $29,700 (the 

actual value of the damaged vehicle at issue) and alleging other 

unspecified compensatory, consequential, and punitive damages,3

as well as the evidence of Plaintiff’s settlement demand of 

$150,000 (based on a pre-discovery, arbitrary estimate of 

 3 Although Plaintiff also seeks punitive damages in this case, 

which is a consideration in determining the jurisdictional 

amount in controversy in diversity cases, see Rae v. Perry, 392 

Fed. Appx. 753, 755 (11th Cir. 2010), the Court is not convinced 

that this proves that the amount in controversy exceeds $75,000. 

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approximately “five times” the actual value of the damaged 

vehicle at issue), the Court finds that Defendant has failed to 

demonstrate by a preponderance of the evidence that the amount 

in controversy in this action exceeds $75,000, exclusive of 

interest and costs.

III. Conclusion

Based on the foregoing, the undersigned finds that the 

Court lacks subject matter jurisdiction over this case under 28 

U.S.C. section 1332. Accordingly, it is recommended that 

Plaintiff’s Motion to Remand (Doc. 2) be GRANTED.

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. L.R. 72.4. 

In order 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.

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DONE this the 20th day of January, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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