IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARREN M. KEYSER, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00096-N

)

HAVERTY FURNITURE CO., INC., )

Defendant. )

ORDER

On February 19, 2015, the Defendant removed this case from the Circuit 

Court of Mobile County, Alabama, under 28 U.S.C. § 1441(a), citing diversity of 

citizenship under 28 U.S.C. § 1332(a) as the sole basis for this Court’s subject matter 

jurisdiction. (See Doc. 1). The Defendant has since filed a motion to remand under 

28 U.S.C. § 1447(c) (Doc. 5), claiming, inter alia: “[F]ollowing the removal, Plaintiff’s 

counsel represented to Defendant’s counsel that Plaintiff has suffered minor alleged 

damages on his AADEA claim and, as a result, the amount in controversy does not 

and will not exceed $75,000. As a result of that representation, and contrary to 

Defendant’s prior good faith belief, the amount-in-controversy requirement for 

federal diversity jurisdiction is not met.” (Id. at 1). The Defendant represents that 

the Plaintiff does not oppose remand. (See id. at 2).

“Diversity jurisdiction exists where the suit is between citizens of different 

states and the amount in controversy exceeds the statutorily prescribed amount, in 

this case $75,000.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001) 

(citing 28 U.S.C. § 1332(a)). The party who removes an action from state court 

“bears the burden of proving that federal jurisdiction exists. Where, as here, the 

plaintiff has not pled a specific amount of damages, the removing defendant must 

Case 1:15-cv-00096-N Document 6 Filed 02/26/15 Page 1 of 3
2

prove by a preponderance of the evidence that the amount in controversy exceeds the 

jurisdictional requirement.” Id. (internal citation omitted).

Comparing the Defendant’s allegations supporting jurisdiction in its notice of 

removal with the allegations in the Plaintiff’s operative complaint, it was 

questionable at the outset whether § 1332(a)’s requisite amount in controversy was 

satisfied. That the Defendant now expressly concedes this requirement was not 

satisfied at the time of removal confirms that subject matter jurisdiction is lacking.1 

Thus, remand is appropriate. See 28 U.S.C. § 1447(c) (“If at any time before final 

judgment it appears that the district court lacks subject matter jurisdiction, the case 

shall be remanded.”).

As the parties were made aware (see Doc. 3), this action was randomly 

assigned to the undersigned Magistrate Judge for all purposes, including trial. 

Inasmuch as no party, to date, has requested reassignment of this action to a United 

States District Judge, there presently exists implicit consent to the undersigned 

conducting all proceedings in this case. See Roell v. Withrow, 538 U.S. 580 (2003) 

(“We think the better rule is to accept implied consent where, as here, the litigant or 

counsel was made aware of the need for consent and the right to refuse it, and still 

 1 The undersigned also notes that the Defendant has only alleged the state of residence for 

the Plaintiff, a natural person. (See Doc. 1 at 5, ¶ 14). “Citizenship, not residence, is the 

key fact that must be alleged . . . to establish diversity for a natural person.” Taylor v. 

Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (emphasis added). See also, e.g., Travaglio v. 

Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“As we indicated in remanding this case 

for jurisdictional findings, the allegations in Travaglio’s complaint about her citizenship are 

fatally defective. Residence alone is not enough.”); Beavers v. A.O. Smith Elec. Prods. Co., 

265 F. App’x 772, 778 (11th Cir. 2008) (per curiam) (unpublished) (“The plaintiffs’ complaint 

alleges only the residence of the nearly 100 plaintiffs, not their states of citizenship. Because 

the plaintiffs have the burden to affirmatively allege facts demonstrating the existence of 

jurisdiction and failed to allege the citizenship of the individual plaintiffs, the district court 

lacked subject matter jurisdiction on the face of the complaint.” (internal citation and 

quotation omitted)).

Case 1:15-cv-00096-N Document 6 Filed 02/26/15 Page 2 of 3
3

voluntarily appeared to try the case before the Magistrate Judge. Inferring consent 

in these circumstances thus checks the risk of gamesmanship by depriving parties of 

the luxury of waiting for the outcome before denying the magistrate judge’s 

authority. Judicial efficiency is served; the Article III right is substantially

honored.”).

Accordingly, it is ORDERED that the Defendant’s unopposed motion to 

remand (Doc. 5) is GRANTED and that this case be REMANDED to the Circuit 

Court of Mobile County, Alabama.

DONE and ORDERED this the 26th day of February 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00096-N Document 6 Filed 02/26/15 Page 3 of 3