IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RICK EARL, :

Plaintiff, :

vs. : CA 14-0498-KD-C

DIEBOLD, INC., et al., :

Defendants.

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and 

recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1), 

plaintiff’s motion to remand (Doc. 9), defendant Diebold, Inc.’s (“Diebold”) motion to

strike (Doc. 12) and opposition to the remand motion (Doc. 13), and plaintiff’s reply 

(Doc. 16). Upon consideration of the foregoing pleadings, the Magistrate Judge 

recommends that the Court GRANT plaintiff’s motion to remand (Doc. 9).

FINDINGS OF FACT

In the complaint (Doc. 1, Exhibit A, COMPLAINT), filed in the Circuit Court of 

Mobile County, Alabama on September 17, 2014, plaintiff, Rick Earl, asserts four claims 

against Diebold and Samuel Elliott—for malicious prosecution/false arrest, abuse of 

process, false imprisonment, and intentional infliction of emotional distress (see id. at 11-

13 & 14).1 All of Earl’s claims arise out of his September 14, 2012 arrest for “failing to 

 1 While plaintiff also asserted a breach of the peace claim in his complaint (id. at 

13-14) and clearly states that “[d]efendants Cook Claims and Barnes[,] with the knowledge and 

acquiescence of the remaining defendants, used constructive force, intimidation, and 

oppression in repossessing the Ford Focus[,]” (id. at ¶ 55), he makes clear in his motion to 

(Continued)

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return a Diebold company car after allegedly being requested to do so by Defendants.” 

(Doc. 9, at 1-2; see also Doc. 1, Exhibit A, COMPLAINT, at ¶¶ 23-36.) The ad damnum 

clauses of each of the four counts previously referenced are identical, Earl demanding 

judgment against the defendants “for compensatory and punitive damages in excess of 

the minimal jurisdictional limits of this Court [that is, the Mobile County Circuit Court], 

plus interest and costs.” (Id. at 12, 13 & 14.) With respect to the malicious 

prosecution/false arrest and abuse of process claims, Earl avers he was damaged “in 

that he was wrongfully arrested, incurred costs associated with that wrongful arrest, 

suffered mental anguish/emotional distress, and other damages” (id. at ¶¶ 42 & 48); 

with respect to his false imprisonment claim, he avers he “was damaged as a result of 

[the] defendants’ unlawful detention of him[]” (id. at ¶ 53); and with respect to his 

intentional infliction of emotion distress claim, plaintiff avers that in causing him to be 

arrested, the defendants knew or should have know that their conduct “would cause 

[him] severe mental anguish and emotional distress” and that “[t]he intentional 

infliction of emotion distress was wanton, reckless, grossly negligent, intentional, 

contumacious, and done without regard to the rights of plaintiff[]” (id. at ¶¶ 58 & 59).

Diebold was served with the summons and complaint on October 22, 2014 (Doc. 

1, Exhibit A, at 122; see id. at 77 (Elliott was served on September 22, 2014)) and filed the 

notice of removal on November 3, 2014 (Doc. 1). Therein, the removing parties contend 

that this Court should use its “judicial experience” and “common sense” with respect to 

the aforementioned allegations contained in plaintiff’s complaint and find that the 

 

remand that “[p]aragraphs 25-27 and the Breach of the Peace Cou[n]t apply only to the 

Defendants dismissed before removal [that is, Cooks Claims Services, Inc. and Joseph Barnes].” 

(Doc. 9, at 2; see also id. at 1.)

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amount in controversy in this case exceeds $75,000, exclusive of interest and costs. (See 

id. at 5-8.) Indeed, relying primarily on rulings in cases from the Northern District of 

Alabama, see Jones v. Hartford Fire Ins. Co., 2013 WL 550419, *1 (N.D. Ala. Feb. 7, 2013) 

(“[T]he moment a state court plaintiff seeks unspecified damages of various kinds, such 

as punitive damages, or emotional distress, or attorneys’ fees, the claim automatically is 

deemed to exceed $75,000 and becomes removable under 28 U.S.C. § 1332.”); Seckel v. 

Travelers Home & Marine Ins. Co., 2013 WL 360421, *2 (N.D. Ala. Jan. 29, 2013) 

(“Although Mr. Seckel only specifically claimed $26,430 in actual damages in his state 

court complaint, the unspecified damages he seeks for his alleged emotional distress 

and unjust enrichment claims allow the Defendant to meet the amount in controversy 

requirement. Without an affidavit from Mr. Seckel stating that he will not claim any 

more than $74,999.99 from Travelers in damages, this court has jurisdiction over the 

case and DENIES Mr. Seckel’s motion to remand.”); Smith v. State Farm Fire & Cas. Co., 

868 F.Supp.2d 1333, 1335 (N.D. Ala. 2012) (“[P]laintiffs . . . who want to pursue claims 

against diverse parties in a state court seeking unspecified damages of various kinds, 

such as punitive damages and emotional distress, must in their complaint formally and 

expressly disclaim any entitlement to more than $74,999.99, and categorically state that 

plaintiff will never accept more. Otherwise, a plaintiff will find herself in a federal 

court[.]”), the removing defendants contend that “the allegations on the face of the 

Complaint establish that the amount in controversy exceeds the jurisdictional minimum 

under 28 U.S.C. § 1332[]” inasmuch as Earl “seeks an unspecified amount of damages of 

various kinds, including mental anguish, emotional distress, and punitive damages[]” 

and failed to disclaim an entitlement to more than $74,999.99. (Id. at 6-8.)2

 2 The defendant concludes its argument in this regard by parenthetically citing to

(Continued)

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Some nine days after the filing of the notice of removal, on November 12, 2014, 

plaintiff’s counsel sent Diebold’s attorney a demand letter. (See Doc. 9, Exhibit A.)

Following our conversation where you advised your client wanted to 

explore settlement early on, I have discussed the pros and cons of settling 

the case with Mr. Earl. We will accept $74,000 to settle this case along with 

a letter from Diebold stating its agreement that Mr. Earl resigned rather 

than was terminated. We extend this offer as being fair and reasonable. 

Per my discussions with you, we look forward to a prompt response.

(Id.) Diebold did respond; however, the corporate defendant seeks a striking of its 

response/settlement offer. (See Doc. 12.)3

 

Employers Mut. Cas. Co. v. Evans, 76 F.Supp.2d 1257 (N.D. Ala. 1999), which relied on two 

Alabama cases, Wal-Mart Stores, Inc. v. Jones, 533 So.2d 551 (Ala. 1988) and Big B. Inc. v. 

Cottingham, 634 So.2d 999 (Ala. 1993), abrogated as recognized in Horton Homes, Inc. v. Brooks, 832 

So.2d 44 (Ala. 2001), to find that it could exercise diversity jurisdiction. Id. at 1260. “These are 

Alabama cases which closely resemble the underlying litigation. Because each contains similar 

claims and fact patterns, and because the awards in each case easily exceed the statutorily 

required amount, the court finds that it has jurisdiction.” Id.; see also id. at 1259 n.1 (“The 

plaintiffs in the underlying action allege that they went shopping at Handy T.V., Inc., left the 

premises, proceeded to return home, were followed to their home by Lane Evans and an 

indefinite number of additional Handy T.V. employees; upon arrival home, Evans and another 

male got out of their vehicle, accused the minor plaintiff [of] being a thief and stealing property 

from Handy T.V., forced the minor plaintiff to disrobe in public in the daytime on his family’s 

front lawn, show them the contents of his clothes, and told him to never return to Handy T.V.”).

3 Diebold’s Rule 12(f) motion to strike (Doc. 12) is due to be DENIED because the 

movant has not established its entitlement to this “’drastic, disfavored remedy.’” Evonik 

DeGussa Corp. v. Quality Carriers, Inc., 2007 WL 4358260, *1 (S.D. Ala. Dec. 13, 2007), quoting 

English v. CSA Equipment Co., LLC, 2006 WL 2456030, *2 (S.D. Ala. Aug. 22, 2006) (other citations 

omitted). This denial, however, does not mean that the Court should consider the contents of 

Diebold’s November 18, 2014 settlement offer—it should not—inasmuch as “[i]n determining 

the amount in controversy, it is irrelevant what Defendant believes the true value of Plaintiff’s 

case to be.” Claxton v. Kum & Go, L.C., 2014 WL 6685816, *4 (W.D. Mo. Nov. 26, 2014) (citing 

cases); see also Stevenson v. Schneider Electric U.S.A., Inc., 2014 WL 789081, *5 (D. Colo. Feb. 27, 

2014) (“[A]lthough a plaintiff’s offer of settlement can be used to establish the amount in 

controversy, the Court is aware of no authority stating that defendant’s offer of settlement is 

entitled to the same presumption.”); Gehl v. Direct Transport, Ltd., 2013 WL 424300, *3 (M.D. Fla. 

Feb. 4, 2013) (“Every case on this subject [of settlement demands and offers] generally instructs 

that the relevant inquiry is plaintiff focused. Counsel cites no case, and the Court is aware of 

none, where a defendant’s settlement offer, by itself, was considered relevant evidence to 

establish the amount in controversy.”). In addition, plaintiff has not established that this Court 

can consider the November 18, 2014 email from defense counsel as evidence of the amount in 

controversy given that it was not sent until after the notice of removal was filed. Marsh v. Lowe, 

2012 WL 443819, *3 (N.D. W.Va. Feb. 10, 2012) (“[T]he January 27, 2012 letter from defense 

(Continued)

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Plaintiff filed his motion to remand on December 3, 2014 (Doc. 9), Diebold its 

response in opposition on December 22, 2014 (Doc. 13), and plaintiff his reply on

January 5, 2015 (Doc. 16). Based upon the contents of the removal petition (Doc. 1) and 

the response in opposition (Doc. 13), the undersigned appreciates Diebold to make 

three arguments in support of its claim that the amount in controversy in this case 

necessarily exceeds $75,000: (1) Alabama courts have routinely entered verdicts in 

excess of $75,000 in similar cases based solely on a false imprisonment claim; (2) 

plaintiff’s requests for compensatory damages (including damages for severe mental 

anguish and emotional distress) and punitive damages as to all his claims clearly push 

the amount in controversy above the $75,000 threshold; and (3) plaintiff’s settlement 

demand affirms that his claims exceed the $75,000 threshold. (Compare Doc. 1 with Doc. 

13.) 

CONCLUSIONS OF LAW

A. Jurisdiction in General.

There can be no doubt but that “[f]ederal 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.” Russell 

Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation 

omitted); see also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.) (“[R]emoval 

 

counsel cannot be considered by this Court as evidence of the amount in controversy as it was 

not sent until after the notice of removal had been filed.”). Of course, plaintiff’s settlement 

demand was also sent after the notice of removal was filed (compare Doc. 9, Exhibit A with Doc. 

1); however, that settlement demand “counts for something[]” Burns v. Windsor Ins. Co., 31 F.3d 

1092, 1097 (11th Cir. 1994), and is arguably evidence filed after the notice of removal that is 

relevant to the state of affairs at the time of removal, Sierminski v. Transouth Fin. Corp., 216 F.3d 

945, 949 (11th Cir. 2000). 

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statutes should be construed narrowly, with doubts resolved against removal.”), cert. 

denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140 (2003); University of South Alabama v. 

American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (“Because removal jurisdiction 

raises significant federalism concerns, federal courts are directed to construe removal 

statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of 

remand to state court.”); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 

377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited 

jurisdiction. They possess only that power authorized by Constitution and statute, 

which is not to be expanded by judicial decree[.]” (internal citations omitted)). 

Moreover, the removing defendant must bear “the burden of demonstrating federal 

jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) 

(citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) 

(“[T]he party invoking the court’s jurisdiction bears the burden of proving, by a 

preponderance of the evidence, facts supporting the existence of federal jurisdiction.”). 

Stated differently, because federal courts are courts of limited jurisdiction “[i]t is . . . 

presumed that a cause lies outside this limited jurisdiction, and the burden of 

establishing the contrary rests upon the party asserting jurisdiction[.]” Kokkonen, supra, 

511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted). 

Where, as here, jurisdiction is predicated on diversity of citizenship pursuant to 

28 U.S.C. § 1332 (see Doc. 1, at ¶¶ 3 & 4 (“This removal is based on diversity of 

citizenship. Pursuant to 28 U.S.C. § 1441, a defendant may remove a civil action 

originally filed in a state court to the federal district court when the district court has 

original jurisdiction to consider the case. . . . This Court has original federal diversity 

jurisdiction pursuant to 28 U.S.C. § 1332(a) because Plaintiff and Defendants are citizens 

of different states and the amount in controversy exceeds $75,000, exclusive of interest 

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and costs.”)),

4 the removing parties, Diebold and Elliott, bear the burden of establishing 

complete diversity of citizenship, that is, that the plaintiff is diverse from all the 

defendants, Triggs, supra, 154 F.3d at 1287 (citation omitted), and, in addition, must

establish 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 Serv. 

Corp., 77 F.3d 1353, 1357 (11th Cir. 1996) (“[W]e hold 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.”), abrogated on other grounds by Cohen v. 

Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000); see also Roe v. Michelin North America, 

Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (“If 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.’”); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 

805, 807 (11th Cir. 2003) (“[W]here jurisdiction is based on a claim for indeterminate 

damages, . . . the party seeking to invoke federal jurisdiction bears the burden of 

proving by a preponderance of the evidence that the claim on which it is basing 

jurisdiction meets the jurisdictional minimum.”). Moreover, as a procedural matter, the 

removal must be timely. See, e.g., Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302 

(M.D. Ala. 2003) (“The time limit in 28 U.S.C. § 1446(b) is ‘mandatory and must be 

 4 Federal courts may exercise diversity jurisdiction over all civil actions where the 

amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is 

between citizens of different states. 28 U.S.C. § 1332(a)(1).

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strictly applied.’”); cf. Moore v. North America Sports, Inc., 623 F.3d 1325, 1329 (11th Cir. 

2010) (“[T]he timeliness of removal is a procedural defect-not a jurisdictional one.”).5

B. Whether the Amount in Controversy Has Been Satisfied.

Mere diversity of citizenship is not sufficient to create jurisdiction under § 1332 

since “the court is obligated to assure itself that the case involves the requisite amount 

in controversy.” Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1261 (11th Cir. 2000) 

(citations omitted). And, “[w]hen, as here, damages are not specified in the state court 

complaint, a removing defendant must prove by a preponderance of the evidence that 

the amount in controversy more likely than not exceeds the jurisdictional requirement.” 

Pate v. State Farm Mut. Auto. Ins. Co., 2010 WL 3372195, at *1 (N.D. Fla. Aug. 25, 2010) 

(citations and internal quotation marks omitted); see Fitzgerald v. Besam Automated 

Entrance Systems, 282 F.Supp.2d 1309, 1314 (S.D. Ala. 2003) (“When the state court 

complaint is indeterminate, then an intermediate burden[—preponderance of the 

evidence—]is placed upon the removing defendant since there is no representation by 

plaintiff’s counsel that would be entitled to deference.”), aff’d, 107 Fed.Appx. 893 (11th 

Cir. Jun. 4, 2004). Because defendants removed this case under the first paragraph of 

Section 1446(b)6 (see Doc. 1, ¶ 7 (“This Notice is being filed within thirty days of 

 5 The plaintiff nowhere contends that the instant removal petition was not timely 

filed or that diversity of citizenship does not exist (see Docs. 9 & 16); therefore, the sole focus of 

this report and recommendation is whether the removing parties have established by a 

preponderance of the evidence that the amount in controversy exceeds $75,000, exclusive of 

interest and costs.

6 The first paragraph of 28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within 

thirty 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 thirty days after the service of summons 

(Continued)

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Diebold’s receipt through service of the summons of the complaint as provided in 28 

U.S.C. Section 1446(b)(2)(C).”)), the Eleventh Circuit’s decision in Roe v. Michelin North 

America, Inc., 613 F.3d 1058 (11th Cir. 2010), guides the undersigned’s analysis. See id. at 

1062 (characterizing that case as a “§ 1446(b) first-paragraph case[ ] in which the 

plaintiff does not make a specific damages demand”). In Roe, the Eleventh Circuit 

stated:

If a defendant alleges that removability is apparent from the face of 

the complaint, the district court must evaluate whether the complaint 

itself satisfies the defendant’s jurisdictional burden. In making this 

determination, the district court is not bound by the plaintiff’s 

representations regarding its claim, nor must it assume that the plaintiff is 

in the best position to evaluate the amount of damages sought. [Pretka v. 

Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir.2010).] Indeed, in some 

cases, the defendant or the court itself may be better-situated to accurately 

assess the amount in controversy. See id. (explaining that “sometimes the 

defendant’s evidence on the value of the claims will be even better than 

 

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.

Id. Of course, Congress, through § 1446(b), has established a “bifurcated removal approach,” Lee 

v. Lilly Trucking of Virginia, Inc., 2012 WL 960989, *1 (M.D. Ala. Mar. 21, 2012), under which

a state court defendant may remove a case to federal court at two procedurally 

distinct moments in time. First, if it is facially apparent from the initial pleading 

that subject matter jurisdiction exists, § 1446(b)(1) provides the procedure for 

removal. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 

2010); Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Such a 

removal must be accomplished “within 30 days after the receipt by the defendant 

. . . of a copy of the initial pleading setting forth the claim for relief upon which 

such action is based . . . .” § 1446(b)(1). However, “[i]f 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 . . . .” § 

1446(b)(3); see also Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir. 2007).

Id.

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the plaintiff’s evidence,” and that a court may use its judgment to 

determine “which party has better access to the relevant information.”).

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. See id. at 754. Put simply, a district 

court need not “suspend reality or shelve common sense in determining 

whether the face of a complaint . . . establishes the jurisdictional amount.” 

See id. at 770 (quoting Roe v. Michelin N. Am., Inc., 637 F.Supp.2d 995, 999 

(M.D. Ala. 2009)); see also Williams[v. Best Buy Co., Inc.], 269 F.3d [1316,] 

1319 (11th Cir. 2001) (allowing district courts to consider whether it is 

“facially apparent” from a complaint that the amount in controversy is 

met). Instead, courts may use their judicial experience and common sense 

in determining whether the case stated in a complaint meets federal 

jurisdictional requirements.

613 F.3d at 1061-1062.

The Eleventh Circuit further stated that the approach announced in Roe “is

consistent with those of other circuits[,]” id. at 1062, specifically citing, inter alia, two 

Fifth Circuit cases—Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999), and Gebbia 

v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000). See 613 F.3d at 1062-1063. Luckett

and Gebbia both demonstrate that “the Fifth Circuit has repeatedly acknowledged the 

power of district court judges to appraise the worth of plaintiffs’ claims based on the 

nature of the allegations stated in their complaints.” Id. at 1063; see Luckett, 171 F.3d at 

298; Gebbia, 233 F.3d at 833; cf. Purdiman v. Organon Pharmaceuticals USA, Inc., 2008 WL 

686996, at *2 (N.D. Ga. Mar. 12, 2008) (pre-Roe) (citing both Luckett and Gebbia, and 

holding that “[a]lthough the Complaint excludes any reference to the amount of 

damages Plaintiff has sustained as a result of Defendant’s allegedly tortious conduct, 

after full review and consideration, the Court concludes that is it apparent from the 

factual allegations in the Complaint that the amount in controversy in this action 

exceeds $75,000”). Thus, at least in the context of a Section 1446(b) first-paragraph 

removal case in which the plaintiff does not make a specific damages demand—such as 

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this one—a district court may employ “its judicial experience or common sense in 

discerning whether the allegations in a complaint facially establish the jurisdictionally 

required amount in controversy.” Roe, 613 F.3d at 1063.

With these principles in mind, the undersigned considers each of Diebold’s three 

arguments in support of its claim that the amount in controversy in this case necessarily 

exceeds $75,000. First, Diebold contends that Alabama courts have routinely entered 

verdicts in excess of $75,000 in similar cases based solely on a false imprisonment claim 

and because the false imprisonment claim in this case resembles the claims in those 

cases, this Court can use its judicial experience and common sense to determine that 

plaintiff’s false imprisonment claim exceeds the $75,000 amount-in-controversy 

threshold. (Compare Doc. 1, at 8 with Doc. 13, at 2-4.) Such “evidence” simply “does not 

suffice[]” to carry a removing defendant’s burden to prove by a preponderance of the 

evidence that “the amount in controversy exceeds the jurisdictional minimum[.]” 

Edwards v. G.A. Braun, Inc., 2013 WL 656259, *3 (S.D. Ala. Feb. 1, 2013) (citation omitted), 

report and recommendation adopted, 2013 WL 656299 (S.D. Ala. Feb. 21, 2013); see Federated 

Mut. Ins. Co., supra, 329 F.3d at 809 (“Federated does point to a number of Alabama 

cases where courts have awarded punitive damages well in excess of $75,000 for bad 

faith failure to pay, but mere citation to what has happened in the past does nothing to 

overcome the indeterminate and speculative nature of Federated’s assertion in this 

case.” (internal citations omitted)); Jackson v. Litton Loan Servicing, LP, 2010 WL 3168117, 

*5 (M.D. Ala. Aug. 10, 2010) (“[R]eliance on state court awards in purportedly similar 

cases is disfavored in this Circuit.”). Therefore, this Court should reject Diebold’s 

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argument that the amount in controversy threshold can be established by citation to 

jury awards in state court cases it purports are similar to the case at hand.7

Diebold next argues that Earl’s requests for compensatory damages (including 

damages for severe mental anguish and emotional distress) and punitive damages as to 

all his claims clearly push the amount in controversy above the $75,000 threshold. 

(Compare Doc. 1, at 5-7 with Doc. 13, at 4-7.) In Robinson v. Clayton, 2012 WL 6028940, *2 

(S.D. Ala. Dec. 3, 2012), this Court specifically determined that “merely listing 

categories of damage[,]” which is exactly what Diebold purports to do in this case (Doc. 

1, at 5-7; Doc. 13, at 4-7), does not satisfy the removing defendant’s burden of 

establishing that the amount in controversy exceeds the $75,000 threshold. In reaching 

this conclusion, this Court favorably cited the conclusion in Williams v. Best Buy Co., Inc.,

269 F.3d 1316, 1318 & 1320 (11th Cir. 2001) (“allegations that the plaintiff tripped over a 

curb and suffered permanent physical and mental injuries, that she incurred substantial 

medical expenses, that she suffered lost wages, that she experienced a diminished 

earning capacity, and that she would continue to suffer those damages in the future, 

along with a demand for both compensatory and punitive damages, did not render it 

facially apparent that the amount in controversy exceeded $75,000”), while 

parenthetically noting that “Williams is a governing application” of the governing 

principles set forth in Roe and Pretka and that Williams “was not overruled by Pretka or 

Roe (nor could it have been, given that Pretka and Roe were not en banc opinions).” 

 7 In truth, the undersigned fails to discern the striking similarity between this case 

and Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala. 1993) and Wal-Mart Stores, Inc. v. Jones, 533 

So.2d 551 (Ala. 1988), given that in the Alabama cases the plaintiffs were “falsely imprisoned” 

by the defendants’ own employees/agents—and in the case of Cottingham sexually assaulted

by an agent of the defendant, compare 634 So.2d at 1002 with 533 So.2d at 551—whereas in this 

case plaintiff was arrested and imprisoned not by agents of the defendant but by agents of the 

State of Alabama (see Doc. 1, Exhibit A, COMPLAINT, at ¶¶ 24-27). 

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Robinson, supra, at *2 & n.1. Based upon Williams and Robinson, therefore, the 

undersigned RECOMMENDS that the Court conclude that the allegations here that 

plaintiff was made to expend monies to hire defense counsel for his criminal 

prosecution, was caused to pay a bail bondsman for his release from jail, was caused to 

suffer severe emotional distress and mental anguish,8 along with a demand for both 

compensatory and punitive damages,

9 do not render it facially apparent that the 

amount in controversy in this case exceeds $75,000, exclusive of interest and costs.10 Cf. 

Lambeth v. Peterbilt Motors Co., 2012 WL 1712692, *3 (S.D. Ala. May 15, 2012) (“While the 

back injury is characterized as ‘serious,’ nothing in the Complaint elaborates on the 

 8 The other “damage” Diebold references in its notice of removal (see Doc. 1, at 6 

(“Plaintiff ‘was damaged in that he was wrongfully arrested, incurred costs associated with that 

wrongful arrest, suffered mental anguish/emotional distress, and other damages to be proved 

at trial.’”)) is simply a combination of the aforementioned damages.

9 The plaintiff’s attachment of the words “in excess of the minimal jurisdictional 

limits of this Court,” (see Doc. 1, Exhibit A, COMPLAINT, at 12) provides no assistance to 

Diebold since the Circuit Court of Mobile County, Alabama (that is, the court to which the 

complaint was making reference) has jurisdiction over civil matters where the amount in 

controversy exceeds $3,000.00, see Ala. Code § 12-11-30(1). 

10 The undersigned further RECOMMENDS that the Court, in reaching this 

conclusion, explicitly find unpersuasive the contrary position in the Northern District of 

Alabama that “the moment a state court plaintiff seeks unspecified damages of various kinds, 

such as punitive damages, or emotional distress, or attorneys’ fees, the claim automatically is 

deemed to exceed $75,000 and becomes removable under 28 U.S.C. § 1332[,]” Jones v. Hartford 

Fire Ins. Co., 2013 WL 550419, *1 (N.D. Ala. Feb. 7, 2013); see also Smith v. State Farm Fire & Cas. 

Co., 868 F.Supp.2d 1333, 1335 (N.D. Ala. 2012) (“[P]laintiffs . . . who want to pursue claims 

against diverse parties in a state court seeking unspecified damages of various kinds, such as 

punitive damages and emotional distress, must in their complaint formally and expressly 

disclaim any entitlement to more than $74,999.99, and categorically state that plaintiff will never 

accept more. Otherwise, a plaintiff will find herself in federal court[.]”), for the very reasons the 

Middle District of Alabama in Mustafa v. Market Street Mortgage Corp., 840 F.Supp.2d 1287 (M.D. 

Ala. 2012) rejected the Northern District of Alabama’s “multiplier” holding in Blackwell v. Great 

American Financial Resources, Inc., 620 F.Supp.2d 1289 (N.D. Ala. 2009). Mustafa, 840 F.Supp.2d at

1291 (“This Court finds Blackwell unpersuasive, however, for it fails to put the burden of proof 

on the removing party, ignores established precedent, and undermines the foundational 

principle that a federal court should construe its removal jurisdiction[] narrowly.”). Jones and 

Smith are unpersuasive for the very same reasons.

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nature or severity of that injury, or otherwise lends substance or meaning to it. We 

simply do not know—or have any basis for inferring from the pleadings—anything 

about how severe, permanent, debilitating or painful the injury might be; how 

extensive, costly, or traumatic the course of treatment was, is or might be; or whether 

and to what extent the injury did, does or will constrain [the plaintiff’s] work or life 

activities.”); Hill v. Toys “R” Us, Inc., 2010 WL 3834532, *1-3 (S.D. Ala. Sept. 24, 2010) 

(remanding case to state court for failure to prove the amount in controversy where the 

plaintiff alleged that she suffered back, neck, arm and head injuries; that she has 

experienced and continues to experience pain and suffering, emotional distress, and 

mental anguish; and that she has incurred ongoing medical expenses). 

In addition to the foregoing, the plaintiff’s allegations of mental anguish and 

emotional distress are too vague and speculative for the undersigned to find that the 

plaintiff’s claims surpass the jurisdictional threshold. See Mustafa, supra, 840 F.Supp.2d 

at 1291 (concluding that the Court could not make a non-speculative estimate of the 

value of the plaintiff’s mental anguish claim); Goodin v. Fidelity Nat’l Title Ins. Co., 2012 

WL 473913, *3 (M.D. Fla. Feb. 14, 2012) (finding that “[plaintiff’s] allegations of ‘mental 

anguish and stress’ are impermissibly vague”), aff’d, 491 Fed.Appx. 139 (11th Cir. Oct. 4, 

2012), cert. denied, U.S. , 133 S.Ct. 2810, 186 L.Ed.2d 862 (2013). Indeed, Earl’s 

complaint, like the complaint in Arrington v. State Farm Ins. Co., 2014 WL 2961104 (M.D. 

Ala. Jul. 1, 2014), “contains no specific allegations from which one could draw any 

reasonable inference regarding the extent of the [plaintiff’s] mental anguish [or] 

emotional distress,” and, as in Arrington, “[i]n [this] court’s ‘judicial experience,’ mental 

anguish and emotional distress damages in cases such as this vary widely depending on 

the circumstances, and even very similar circumstances may affect different plaintiffs in 

different ways.” Id. at *6. Thus, the undersigned declines to “indulge in speculation or 

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fill empty gaps in the plaintiff’s factual averments with unfounded assumptions about 

what the evidence may show.” Id., citing Roe, supra, 613 F.3d at 1061; see Pretka v. Kolter 

City Plaza, II, Inc., 608 F.3d 744, 753-754 (11th Cir. 2010) (“[W]ithout facts or specific 

allegations, the amount in controversy could be ‘divined [only] by looking at the 

stars’—only through speculation—and that is impermissible.”). And, finally, while 

punitive damages claims should be considered when evaluating whether the value of a 

case exceeds $75,000, “there is nothing talismanic about such a demand that would per 

se satisfy the amount-in-controversy requirement and trigger federal subject-matter 

jurisdiction.” Lambeth, supra, at *4. Here, the undersigned cannot estimate the value of 

the plaintiff’s punitive damages claims without engaging in pure speculation,

11 see 

 11 The undersigned recognizes that, in Blackwell, supra, 620 F.Supp.2d at 1291, the 

Northern District of Alabama determined that where the plaintiff alleged $23,172.28 in 

compensatory damages, “a punitive award of slightly more than double the compensatory 

damages claim would occasion an amount in controversy that exceeds the jurisdictional 

minimum. Such an amount for punitive damages is uncontroversially within the limits of the 

Due Process Clause.” Accordingly, that court concluded that the punitive damages claims in 

that case established the jurisdictional requirements with regard to the amount in controversy. 

Id. at 1291-1292. 

However, the undersigned declines to follow the reasoning in Blackwell and, instead, 

follows the reasoning of the Middle District of Alabama in Mustafa, where it declined to apply a 

multiplier to the plaintiff’s $19,444.33 in compensatory damages when evaluating the plaintiff’s 

mental anguish and punitive damages claims. Mustafa, 840 F.Supp.2d at 1291-1292. In Mustafa, 

the Middle District considered the analysis in Blackwell, but determined that it would be 

inappropriate for the court to evaluate punitive damages claims by applying multipliers to 

compensatory damages claims. Id. The Middle District stated as follows: 

This Court finds Blackwell unpersuasive, however, for it fails to put the 

burden of proof on the removing party, ignores established precedent, and 

undermines the foundational principle that a federal court should construe its 

removal jurisdiction[] narrowly. First, applying a single digit multiplier 

sufficiently high to satisfy the amount-in-controversy requirement, without 

more, assumes away the removing party’s burden to prove the propriety of 

removal by a preponderance of the evidence. Second, it also ignores the Eleventh 

Circuit’s command in Lowery v. Alabama Power Company to look at the facts 

supporting a damages assertion, because “the existence of jurisdiction should not 

be divined by looking to the stars.” 483 F.3d 1184 (11th Cir. 2007). Woodenly 

applying a single digit multiple of the compensatory damages claimed, without a 

non-speculative reason to believe the jury would come back with such an award, 

(Continued)

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Mustafa, 840 F.Supp.2d at 1291, an endeavor which Roe and Pretka eschew, see, e.g., 608 

F.3d at 754.

Diebold’s final argument is that plaintiff’s settlement demand affirms that his 

claims exceed the $75,000 threshold. (See Doc. 13, at 7-11.) It is certainly clear that in an 

effort to meet its burden of establishing that the amount in controversy exceeds $75,000, 

the removing defendant may present additional evidence, including evidence of 

settlement demands. See Roe, 613 F.3d at 1061 (“In some cases, [the removing 

defendant’s] burden requires [it] to provide additional evidence demonstrating that

removal is proper.” (footnote and citation omitted)); Burns, supra, 31 F.3d at 1097 

(considering the plaintiff’s settlement demands before deciding whether the removing 

defendant established that the amount in controversy satisfied the jurisdictional 

requirements); Land Clearing Co., LLC v. Navistar, Inc., 2012 WL 206171, *2 (S.D. Ala. Jan. 

24, 2012) (same); Benandi v. Mediacom Southeast, LLC, 2011 WL 5077403, *2-4 (S.D. Ala. 

Sept. 30, 2011) (same), report and recommendation adopted, 2011 WL 5077108 (S.D. Ala. 

Oct. 24, 2011); Jackson v. Select Portfolio Serv., Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 

2009) (same). Here, of course, the plaintiff—not the defendant—submitted the demand 

 

violates Lowery’s explicit commands and is not a reasonable extrapolation from 

the pleadings under Roe. Third, assuming a punitive damages award of up to 

nine times compensatory damages (likely the highest multiplier that comports 

with due process) ignores the principle that courts should construe the remand 

statutes narrowly so as to resolve jurisdictional uncertainties in favor of remand. 

Burns v. Windsor Ins., Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Furthermore, using 

a multiplier, without more, would trigger grave federalism concerns: cases with 

compensatory damages of just $8,333.33 could begin finding their way into 

federal court, thus usurping the States’ jurisdiction over all but the smallest 

claims.

Id. Like the court in Mustafa, the undersigned declines to evaluate the plaintiff’s punitive 

damages claim by applying a multiplier to the plaintiff’s compensatory damages, 

particularly since plaintiff makes no specific claim for compensatory damages. Indeed, 

applying a multiplier in this case would require “double” speculation by this Court. 

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letter dated November 12, 2014 (Doc. 9, Exhibit A); despite this anomaly, the 

undersigned will consider plaintiff’s settlement demand. 

The amount requested in a settlement demand does not determine whether the 

amount in controversy exceeds $75,000, but “it counts for something.” Burns, 31 F.3d at 

1097. This Court has commented that “[s]ettlement offers commonly reflect puffing and 

posturing, and such a settlement offer is entitled to little weight in measuring the 

preponderance of the evidence.” Jackson, 651 F.Supp.2d at 1281 (citations omitted). “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.” Id. (citing Golden Apple 

Management Co., Inc. v. GEAC Computers, Inc., 990 F.Supp. 1368 (M.D. Ala. 1998)).

Here, plaintiff’s counsel informed counsel for Diebold that his client would 

“accept $74,000 to settle this case along with a letter from [the defendant] stating its 

agreement that Mr. Earl resigned rather than was terminated. We extend this offer as 

being fair and reasonable.” (Doc. 9, Exhibit A.) As was the case in Montgomery v. Food 

Giant Supermarkets, Inc., 2014 WL 5307890 (S.D. Ala. Oct. 16, 2014), Earl’s November 12, 

2014 demand letter “is a barebones document that sets forth a dollar figure, but offers 

[nothing] in the form of specific information explaining how that figure was derived or 

how it might represent an honest assessment of [plaintiff’s] damages.” Id. at 3. Just as 

important, it is clear from other contents of the letter (see Doc. 9, Exhibit A (“Following 

our conversation where you advised your client wanted to explore settlement early on, I 

have discussed the pros and cons of settling the case with Mr. Earl. . . . Per my 

discussions with you, we look forward to a prompt response.”)), that the letter from 

plaintiff’s counsel was a mere invitation to discuss settlement, that is, “nothing more 

than an initial volley, a shot across the bow by [plaintiff].” Montgomery, supra; see also id.

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(“For aught the record shows, the [demand] letter was designed to start the bidding at a 

high number, rather then to set forth a realistic, clear-eyed evaluation of what is 

potentially recoverable to [plaintiff] at trial.”). Accordingly, as in Montgomery, the 

undersigned recommends that the Court afford little weight to the November 12 letter 

vis-à-vis the amount-in-controversy calculus. See id. For the reasons identified above, 

plaintiff’s demand letter simply does not confirm that which Diebold claims “is 

apparent from the face of the complaint: the amount in controversy exceeds $75,000, 

and removal is appropriate.” (Doc. 13, at 11.) Instead, as the undersigned has explained 

at no small length, the face of the complaint in no manner suggests the amount in 

controversy in this case exceeds the jurisdictional threshold of $75,000 and plaintiff’s 

demand letter does not in any matter affirm (or confirm) that plaintiff’s claims exceed 

the jurisdictional threshold.

CONCLUSION

Roe’s direction to use “judicial experience and common sense in determining 

whether the case stated in a complaint meets federal jurisdictional requirements[,]” 613 

F.3d at 1062, is not an invitation to speculate as to amount in controversy. Keeping in 

mind the narrow construction afforded the removal statute, a defendant must still carry 

its burden to prove that a plaintiff’s suit—in this case—more likely than not exceeds 

$75,000. Diebold has failed to shoulder that burden. Accordingly, after careful 

consideration of the parties’ briefing and the pleadings, and for the reasons set forth 

above, it is RECOMMENDED that the motion to remand (Doc. 9) be GRANTED and 

that this matter be REMANDED to the Circuit Court of Mobile County, Alabama.12

 12 The undersigned further RECOMMENDS that the Court DENY Diebold’s 

request that the instant remand be conditioned upon Earl filing a stipulation that he will not 

seek more than $75,000 in damages (see Doc. 13, at 11-12 (citing Smith, supra, 868 F.Supp.2d at 

(Continued)

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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. The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review to plain error review of the 

magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013) (emphasis in original). 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.

DONE this the 5th day of February, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

 

1335 and Seckel, supra, at *2)) inasmuch as such “condition” attached to the remand would be 

contrary to Eleventh Circuit precedent. Compare Williams, supra, 269 F.3d at 1320 (“There are 

several reasons why a plaintiff would not [] stipulate [his claims do not exceed $75,000], and a 

refusal to stipulate standing alone does not satisfy Best Buy’s burden of proof on the 

jurisdictional issue.”) with Burns, supra, 31 F.3d at 1097 (“The possibility that plaintiff may in the 

future seek or recover more damages is insufficient to support federal jurisdiction now.”) and 

Sherman v. Windstream Communications, Inc., 2013 WL 2948359, *6 (S.D. Fla. Jun. 14, 2013) 

(ordering remand to state court and specifically noting that nothing about “Plaintiff’s refusal to 

stipulate that his damages will not exceed $75,000 require[s] a different result.”).

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