IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RANDY TORBERT, et al., : 

 :

Plaintiffs, :

 :

vs. : CIVIL ACTION NO. 15-00284-CG-B

 : 

ADVANCED DISPOSAL SERVICES, :

ALABAMA, LLC., et al., : 

:

: 

Defendants. : 

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiffs’ Motion to 

Remand (Doc. 4), and Defendants’ response in opposition. (Doc. 

14). The motion has been referred to the undersigned Magistrate 

Judge for entry of a Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). Upon consideration, the undersigned 

RECOMMENDS that Plaintiff’s Motion to Remand be granted, and 

this case be remanded to the Circuit Court of Mobile County, 

Alabama. 

I. Background

Plaintiffs are homeowners who reside in the Quail Community 

in Theodore, Alabama. (Doc. 1-1 at 3-10). They filed this action 

in the Circuit Court of Mobile County, Alabama. In their 

complaint, Plaintiffs alleges that Defendants Advanced Disposal 

Services Alabama, LLC and Advanced Disposal Services Mobile 

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Transfer Station, LLC constructed and now operate a wastetransfer station in close proximity to their homes, and that the 

facility has subjected them to obnoxious odors, and an

infestation of rodents and other vermin. (Id. at 8). According to 

Plaintiffs, Defendants were negligent in placing the facility in 

close proximity to their homes, and have created a nuisance which 

has resulted in their exposure to obnoxious odors, and an 

infestation of rodents and other vermin, a disruption to their 

quality of life and enjoyment of their homes, and a reduction in 

the value of their properties. Relying on these facts, 

Plaintiffs, in count one, assert a nuisance claim, and seek 

damages of up to $74,000. In count two of Plaintiffs’ complaint, 

Plaintiffs, relying on these same facts, assert a negligence 

claim, and seek damages up to $74,000. In count three of 

Plaintiffs’ complaint, they seek injunctive relief and request 

an order requiring Defendants to abate the nuisance. (Id. at 9).

Defendants timely removed this action from the Circuit Court 

of Mobile County under 28 U.S.C. § 1332 based on diversity of 

citizenship. (Doc. 1). In their Notice, Defendants assert that 

complete diversity of citizenship exists between Plaintiffs and 

Defendants, and that by aggregating the value of each Plaintiff’s 

nuisance and negligence claims, the amount in controversy is met. 

(Id.). Plaintiffs filed the instant motion on June 3, 2015 

seeking to remand this action to state court. While Plaintiffs 

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acknowledge that there is complete diversity of citizenship 

between the parties, they contend that Defendants have failed to 

demonstrate that the threshold amount in controversy has been 

satisfied. (Doc. 4). According to Plaintiffs, their complaint 

makes clear that while they have asserted two different legal 

theories, namely negligence and nuisance, they are seeking one 

award of damages for the same harm. (Id. at 2-3). Thus, their 

claims cannot be aggregated to reach the jurisdictional amount.

In their response in opposition (Doc. 14), Defendants 

contend that Plaintiff’s nuisance and negligence claims are not 

presented in the complaint as alternative theories, and that 

under state law, Plaintiffs could conceivably recover under both 

theories because while the nuisance claim is based on the odors 

emitting from the facility and the rodent/vermin problem caused 

by the waste facility, the negligence claim is based on the 

placement of the facility in close proximity to a residential 

area, and the alleged failure to take proper steps to address the 

problems with the odor and rodents. (Id. at 2-3)(citing City of 

Birmingham v. City of Fairfield, 375 So.2d 438, 441 (Ala. 

1979)(citations omitted)). Defendants further contend that the 

post-removal assertion by Plaintiffs’ counsel that the nuisance 

and negligent claims are meant to be alternative theories should 

be rejected because the complaint trumps post-removal 

representations offered to resist federal jurisdiction. (Doc. 14 

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at 2-3)(citing Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302, 

1306 n.1(11th Cir. 2001)(citations omitted)). Defendants also 

contend that Plaintiffs’ claim for injunctive relief and 

attorney’s fees, exclusive of interest and costs, would certainly 

exceed $75,000. (Doc. 14 at 6, fn 1). Finally, Defendants argue 

that to the extent the Court determines that remand is 

appropriate, the Court should issue an order requiring each 

Plaintiff to sign an affidavit affirming that they will not seek, 

request nor accept more than $74,000 as a total remedy whether in 

the form of monetary damages or injunctive relief, and any award 

exceeding said amount shall be subject to automatic remittitur to 

$74,000. (Id. at 6). 

II. Analysis

A. Standard of Review 

A removing defendant has the burden of proving proper 

federal jurisdiction. See Adventure Outdoors, Inc. v. Bloomberg, 

552 F.3d 1290, 1294 (llth Cir. 2008); Friedman v. New York Life 

Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005)(“In removal cases, 

the burden is on the party who sought removal to demonstrate that 

federal jurisdiction exists.”)(citation omitted). Because 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. See Univ. of S. Ala. V. 

Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); Burns v. 

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

Furthermore, “once a federal court determines that it is without 

subject matter jurisdiction, the court is powerless to continue.” 

Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F. 3d 

1079, 1092 (llth Cir. 2010)(internal quotes omitted).

As noted supra, Defendants have predicated removal on 

diversity of citizenship. Under 28 U.S.C. §1332(a), federal 

courts have original jurisdiction over all civil actions between 

citizens of different states where the amount in controversy 

exceeds the sum or value of $75,000, exclusive of interest and 

costs. Underwriters, 613 F. 3d at 1085. In this action, the 

parties agree that complete diversity of citizenship exists; 

thus, the sole issue is whether the amount in controversy 

requirement has been satisfied1.

 1 Per the complaint, Plaintiffs are citizens of the State of 

Alabama. (Doc. 1-1 at 3-6). In their Notice of Removal, 

Defendants assert that Advanced Disposal Services Alabama, LLC is 

a limited liability company whose sole member is Advanced 

Disposal Services South, LLC, which is also a limited liability 

company. According to Defendants, Advanced Disposal Services 

South, LLC’s sole member is ADS Waste Holdings, Inc., a Delaware 

corporation whose principal place of business is Ponte Vedra, 

Florida. (Doc. 1 at 3-4). Therefore, Defendants are citizens of 

Delaware and Florida for the purposes of diversity jurisdiction. 

diversity purposes, and that jurisdictional requirement is met. 

Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 

1020, 1022 (11th Cir. 2004)(“For purposes of accessing diversity 

of citizenship, “a limited liability company is a citizen of any 

state of which a member of the company is a citizen.””). 

(Continued)

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B. Amount in Controversy

The law is clear that “[i]f the 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.” Roe v. Michelin North America, 

Inc., 613 F.3d 1058, 1061(llth Cir. 2010)(citations and internal 

quotation marks omitted.). The preponderance of the evidence 

standard does not require a removing defendant “to prove the 

amount in controversy beyond all doubt or to banish all 

uncertainty about it. Pretka v. Kolter City Plaza II, Inc., 608 

F.3d 744, 754 (llth Cir. 2010). 

“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.” SUA Ins. Co. v. 

Classic Home Builders, LLC, 751 F.Supp.2d 1245, 1252 

(S.D.Ala.2010)(quoting Roe v. Michelin North America, Inc., 613 

F.3d 1058, 1061-62(11th Cir. 2010)). Courts may use judicial 

experience and common sense to determine whether the case stated 

in the complaint meets the requirements for federal jurisdiction. 

Id. Reliance on “speculation” is “impermissible”. Id.(citing 

 

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Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 

2010)). 

As noted, Defendants contend that Plaintiffs’ negligence and 

nuisance claims should be aggregated in order to satisfy the 

jurisdictional amount. Defendants further contend that 

Plaintiffs’ post-removal assertions, that they each seek one 

recovery under two alternative theories, should be rejected 

because the amount in controversy must be measured as of the date 

of removal as opposed to after there have been ensuing 

developments. Defendants are correct that in determining subjectmatter jurisdiction, the Court focuses on the facts as they 

existed when the case was removed rather than later developments. 

See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95 

(llth Cir. 2008)(“The existence of federal jurisdiction is tested 

at the time of removal.”); Pintando v. Miami-Dade Hous. Agency, 

501 F. 3d 1241, 1243 n.2 (llth Cir. 2007)(“[T]he district court 

must look at the case at the time of removal to determine whether 

it has subject matter jurisdiction”). However, courts in this 

Circuit have stressed that while post-removal changes in the 

amount in controversy are not permitted, post-removal 

clarifications of the amount that is in controversy at the moment 

of removal are permitted. Jackson v. Select Portfolio Servicing, 

Inc., 651 F. Supp.2d 1279, 1282 (S.D. Ala. 2009). Thus, where a 

plaintiff seeks, after removal, to clarify, as opposed to alter, 

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facts bearing on the amount in controversy, courts in this 

Circuit typically accept such evidence in determining whether 

diversity jurisdiction existed at the time of removal. Land 

Clearing Co., LLC v. Navistar, Inc., 2012 U.S. Dist. LEXIS 8603 

(S.D. Ala. Jan. 23, 2012); Hardy v. Jim Walter Homes, Inc., 2007 

U.S. Dist. LEXIS 47758). 

In the case at hand, Plaintiffs have not sought to amend 

their complaint, but through their counsel, they have sought to 

clarify that each of them is seeking one recovery under two 

alternative theories. A review of the complaint reflects that 

Plaintiffs rely upon the same set of facts to support both their 

negligence and nuisance claims, and that they essentially allege 

the same harm arising from both claims, namely their exposure to 

obnoxious odors, and an infestation of rodents and other vermin, 

disruption to their quality of life and enjoyment of their homes, 

and a reduction in the value of their respective properties. 

Accordingly, the undersigned finds that the post-removal 

assertion by Plaintiff’s counsel is properly treated as a 

clarification, which can be considered by the Court in 

determining whether the jurisdictional amount has been meet in 

this case.

With respect to Defendants’ aggregation argument, the 

undersigned notes that “[i]n general, to satisfy the 

jurisdictional amount a plaintiff’s claims against a defendant 

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may be aggregated.” Keach v. Poole, 2013 U.S. Dist. LEXIS 15329 

(S.D. Ala. Feb. 5, 2013). “However, if these claims are 

alternative bases of recovery for the same harm under state law, 

[the plaintiff] could not be awarded damages for both, and a 

court should not aggregate the claims to arrive at the amount in 

controversy.” Id.(citing Classic Home Builders, 751 F. Supp. 2d 

at 1252). While Defendants argue that Plaintiffs could 

conceivably recover under both a negligence and a nuisance 

theory, Plaintiffs have clarified that they seek but one recovery 

for their exposure to obnoxious odors, and an infestation of 

rodents and other vermin, a disruption to their quality of life 

and enjoyment of their homes, and a reduction in the value of 

their respective properties. Indeed, in their complaint, 

Plaintiffs each seek judgment against “Defendants, jointly and 

severally, for compensatory damages not to exceed $74,000, 

exclusive of interest and costs." (Doc. 1-1 at 9). And, in the 

motion to remand, Plaintiffs’ counsel clarified that Plaintiffs 

seek “no more than $74,000 in total damages, under the 

alternative theories of liabilities set out in Counts One and 

Two.” (Doc. 4 at 3). The undersigned finds that whether 

Defendants’ alleged activity is classified as negligent or as a

nuisance, the damages allegedly flowing therefrom appear to be 

the same. Accordingly, as the master of their complaint, 

Plaintiffs can seek relief under alternative theories for the 

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same harm, and can each limit their requested damages to “no more 

than $74,000”. See Hardy v. Jim Walter Homes, Inc., 2007 U.S. 

Dist. LEXIS 47758)(“Because a plaintiff is the master of his own 

complaint, his decision to limit his damages below the 

jurisdictional threshold is ordinarily sufficient to ward off 

involuntary exile to federal court.”). The undersigned thus finds 

that aggregation of the damages in counts one and two is not 

appropriate under the circumstances, and that the damages sought 

in Plaintiff’s complaint fall below the jurisdictional cap. 

Defendants next argue that even if Plaintiffs’ nuisance and 

negligence claims are not aggregated, their complaint still 

places more than $75,000 in issue because in count three, 

Plaintiffs request injunctive relief and reasonable attorneys’

fees. (Doc. 14 at 6). Defendants contend that the value 

associated with ordering the facility to “cease operation until 

such actions are effectively implemented” would itself exceed 

$75,000 irrespective of aggregation with another claim. (Id.). 

The Court disagrees due to the speculative nature of the amounts 

at issue in this claim. 

“When a plaintiff seeks injunctive or declaratory relief, 

the amount in controversy is the monetary value of the object of 

the litigation from the plaintiff’s perspective.” Federated Mut. 

Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 

2003)(citing Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 

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(11th Cir. 2000)). If the value of that relief is speculative or 

immeasurable, then it cannot satisfy the amount in controversy as 

a matter of law. See Mitchell v. GEICO, 115 F.Supp.2d 1322, 1327 

(M.D.Ala.2000)(observing that sometimes the full value of 

requested injunctive or declaratory relief is too speculative to 

establish the amount in controversy); Lutz v. Protective Life 

Ins. Co., 328 F.Supp.2d 1350, 1359 (S.D.Fla.2004)(monetary value 

of benefit to plaintiffs from requested equitable relief must be 

sufficiently measurable and certain to satisfy the amount in 

controversy, and cannot be considered if it is not). A prayer for 

damages is indeterminate when it does not allege a specified 

amount of damages. SUA Ins. Co., 751 F.Supp.2d at 1245 

(S.D.Ala.2010)(citing Federated Mutual Ins. Co., 328 F.3d at 808; 

St. Paul Reinsurance Co. v. Greenburg, 134 F.3d 1250, 1253 (5th

Cir. 1998)). 

In count three, Plaintiffs assert that “Defendants should be 

required to implement such measures as are necessary to abate 

their waste odor nuisance” (Doc. 1-1 at 9). There is no dollar 

value attached to this request. While Defendants argue that the 

value is that of ordering the facility to “cease operation until 

such actions are effectively implemented” (Doc. 14 at 6), this is 

not the standard the Court uses for determining value. Value is 

measured from the plaintiff’s point of view, and Plaintiffs have 

not proffered a stated value for this relief. See Federated 

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Mutual Ins. Co., 328 F.3d at 807. Further, there is nothing in 

the record that suggests, let alone places a value on the 

implementation of measures that would abate the obnoxious odors 

and rodent/vermin infestation. Thus, the value of the requested 

remedial action is speculative at best.

In addition, the general rule is that attorneys’ fees do not 

count towards the amount in controversy unless allowed for by a 

contract or the statute, particularly when the record is silent 

on the amount of fees that are likely to be awarded. SUA Ins. 

Co., 751 F.Supp.2d at 1255, 1256 (citing Federated Mutual Ins. 

Co., 328 F.3d at 803 n.4). The complaint provides only that 

Plaintiffs will seek “reasonable attorney’s fees”. (Doc. 1-1 at 

9). There is nothing before the Court that suggests that 

Plaintiffs would be entitled to such fees if they prevailed, nor 

is there anything that would permit the Court to place a value on 

any such fees. SUA Ins. Co., 751 F. Supp. 2d at 1251 (While the 

Court is permitted to make reasonable deductions or inferences 

from the pleadings regarding value, reliance on speculation in 

impermissible). Thus, Defendants’ argument that Plaintiffs’ 

claim for attorney’s fees and injunctive relief demonstrate that 

the jurisdictional amount has been meet must be rejected.

III. Conclusion

For the reasons set forth above, the undersigned finds that 

Defendants have not met their burden of establishing that it is 

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more likely than not that the amount in controversy at the time 

of removal exceeded $75,000, as necessary to support federal 

diversity jurisdiction pursuant to 28 U.S.C. § 1332. Accordingly, 

the undersigned RECOMMENDS that Plaintiffs’ Motion to Remand be 

GRANTED and that Plaintiffs’ requests for costs and fees be 

DENIED2.

 2 As to the request for an order directing Plaintiffs to 

execute an affidavit that they will not seek, request nor accept 

more than $74,000 as a total remedy whether in the form monetary 

damages or injunctive relief, and any award exceeding said amount 

shall be subject to automatic remittitur to $74,000, the 

undersigned directs the parties to the following admonition, 

provided by Magistrate Judge Cassady, and based on warnings 

provided by Senior District Judge Butler and Chief Judge Steele,

The Court...caution[s] Plaintiff, just as 

[this Court did] in Brown v. Kabco Builders, Inc., 

Civil Action 07-0099-WS-C, 2007 U.S. Dist. LEXIS 

19398, 2007 WL 841690 (S.D. Ala. Mar. 15, 2007, and 

Matthews v. Fleetwood Homes of Georgia, 92 F. Sup. 2d 

1285 (S.D. Ala. 2000). . .See 2007 U.S. Dist. LEXIS 

19398, 2007 WL 841690, at *5 n.9; 92 F. Supp. 2d at 

1289. If Plaintiff[s] later amend [their] complaint 

“to seek damages in excess of [the] jurisdictional 

threshold, suggesting that [they were] engaging in 

manipulative forum-shopping chicanery, [this court 

will] not hesitate to impose ‘swift’ and ‘painful’ 

sanctions upon application.” 2007 U.S. Dist. LEXIS 

19398, 2007 WL 841690, at *5 n.9 (citing Matthews, 92 

F. Supp. 2d at 1289; Federated Mut. Ins. Co. v. 

McKinnon Motors, LLC, 329 F. 3d 805, 808 & n.6 (llth 

Cir. 2003)(observing that plaintiff’s counsel are 

officers of the court and subject to Rule 11 sanctions 

for making representations for improper purposes, and

that motions for sanctions may be initiated and 

decided even after the underlying case has been 

resolved and is no longer pending); Burns v. Windsor, 

Ins. Co., 31 F.3d 1092, 1095 (llth Cir. 

1994)(presuming that plaintiff’s counsel recognizes 

that representations regarding amount in controversy 

(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. GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order based 

on unobjected-to factual and legal conclusions if the party was 

informed of the time period for objecting and the consequences on 

appeal for failing to object. In the absence of a proper 

objection, however, the court may review on appeal for plain 

error if necessary in the interests of justice.” 11th Cir. R. 3-

1. In order to be specific, an objection must identify the 

 

“have important legal consequences and, therefore, 

raise significant ethical implications for a court 

officer”)).

Banks v. Social Serv. Coordinators, Inc., 2010 U.S. Dist. 

LEXIS 107022, 2010 WL 394701, at *4 n.1 (S.D. Ala. Oct. 6, 

2010)(internal citation modified); see also Davison v.

Lefever, 2013 U.S. Dist. LEXIS 109311 (S.D. Ala. July 18, 

2013).

Case 1:15-cv-00284-CG-B Document 24 Filed 10/21/15 Page 14 of 15
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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 21st day of October, 2015.

 

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

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