IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SANDRA P. HUMPHRIES, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 10-00194-CG-N

)

ANDERSON TRUCKING SERVICE, INC. )

et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

This action is before the undersigned on plaintiffs= motion to remand (docs. 8-9),

defendants= response in opposition thereto (doc. 14), and plaintiffs= reply (doc. 15). This

matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. '

636(b)(1)(B) for entry of a Report and Recommendation. Upon consideration of these

filings and all other pertinent portions of the record, it is recommended that the motion to

remand be granted and the Clerk of Court be directed to take such steps as are necessary

to transfer this action to the Circuit Court of Baldwin County, Alabama.

I. Background.

This litigation arises from a September 2, 2009, accident in which the plaintiff,

Sandra P. Humphries, was pinned against the wall of her self-storage unit by a tractortrailer truck driven by Defendant Jerry Porter. The tractor was owned by Jerry Porter and

the trailer was owned by Defendants Anderson Trucking Service and Sunbelt Furniture

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In their Notice of Removal (doc. 1 at 4), defendants describe plaintiff’s deposition testimony on

March 4, 2010, as “evasive, vague, and non-specific regarding damages,” thus acknowledging

that the deposition did not provide evidence from the plaintiff which established the requisite

amount in controversy to vest this Court with jurisdiction. Even if the defendants had relied

upon plaintiff’s March 4th deposition, plaintiff’s testimony was given more than thirty days prior

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Xpress. Plaintiff’s Brief (Doc. 9) at 1; Complaint (Doc. 1 at Exh. A - Part 1) at 2. On

December 23, 2009, plaintiff filed this lawsuit in the Circuit Court of Baldwin County,

Alabama, against the aforementioned defendants alleging various causes of action for

negligence and wantonness. Id.; Complaint (Doc. 1 at Exh. A - Part 1) at 2-7. 

On February 3, 2010, defendants served the plaintiff with their First

Interrogatories, Requests for Production and Requests for Admission. Plaintiff’s Brief

(Doc. 9) at 1; Defendants’ Opposition Brief (Doc. 14) at 2. On March 1, 2010, plaintiff

served defendants with her responses. Id.; Defendants’ Opposition Brief (Doc. 14) at 2-4.

On March 4, 2010, defendants took plaintiff’s deposition. During this deposition,

plaintiff was asked detailed questions about her injuries, past and future medical

treatment and other damages. Plaintiff’s Brief (Doc. 9) at 2 and Exh. 1; Defendants’

Opposition Brief (Doc. 14) at 4-9. 

On March 8, 2010, defendants served the plaintiff with a Second Requests for

Admission. Plaintiff’s Brief (Doc. 9) at 2; Defendants’ Opposition Brief (Doc. 14) at 9. 

Plaintiff provided responses on April 7, 2010. Defendants’ Opposition Brief (Doc. 14) at

10-12 and Exh. E.

Although defendants incorporate in their brief excerpts from both plaintiff’s March

4, 2010 deposition1

 and plaintiff’s April 7, 2010, answers to defendants’ second Request

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to removal.

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Defendants do cite to plaintiff’s response on April 7, 2010, to their Second Set of Requests for

Admission by which she “admitted to incurring approximately $64,000.00 in billed medical

expenses. Notice of Removal (Doc. 1 at 7) at ¶¶ 8 and 15. The actual request for admission at

issue was served on March 8, 2010, and stated : “Please admit that you claim past medical

expenses in an amount equal to or greater than $64,000.00 in this suit.” Opposition Brief (Doc.

14) at Exh. E (Doc. 14-5) at ¶ 3. Plaintiff’s answer was:

Admitted. Pursuant to Plaintiff’s counsel’s letter of January 25, 2010,

Plaintiff’s total medical expenses at that time were ^62,371.12. The

medical bills currently in Plaintiff’s possession total an amount equal to or

greater than $64,000.00.

Id. Defendants have not contended that this information regarding plaintiff’s medical expenses

was not already in defendants’ possession more than 30 days prior to the removal of this action. 

See e.g., Holloway v. Morrow, 2008 WL 401305 (S.D. Ala. Feb. 11, 2008)(removal is untimely

if based upon evidence already in defendants possession more than 30 days prior to removal,

even if also proffered at a later deposition or answer to discovery requests).

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for admission2, they do not contend that these excerpts contain evidence establishing that

the amount in controversy unequivocally satisfies the jurisdictional amount. Instead,

defendants principally rely on an Offer of Judgment they filed on March 18, 2010 in state

court. According to the defendants, “[t]he Plaintiff’s rejection of the Defendant’s Offer

of Judgment for $78,500.00 constitutes “other paper” that may be used to establish that

the jurisdictional amount has been met.” Notice of Removal (Doc. 1 at 10), citing 28

U.S.C. § 1446(b). In addition, defendants argue that plaintiff’s refusal to accept their

offer of judgment in the amount of $78,500 before it expired on April 1, 2010 “was the

tipping point that, when taken into account with all the other evidence establishing the

amount in controversy, made the case removable.” Defendants’ Opposition Brief (Doc.

14) at 13 and Exh.F. 

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On April 29, 2010, defendants filed a Notice of Removal (doc. 1), asserting that

this Court has diversity jurisdiction under 28 U.S.C. § 1332 and was removable under 28

U.S.C. § 1446(b). Defendants specifically contended that “by the plaintiff’s refusal of the

Offer of Judgment, the Plaintiff has unquestionably placed the value of her case above

$75,000.00.” Notice of Removal (Doc. 1) at ¶ 18.

Plaintiff filed her motion to remand on May 11, 2010 (doc. 8) on the grounds, in

sum, that removal was improper because: (1) the expiration of the defendants’ Offer of

Judgment does not constitute an “amended pleading, motion, order, or other paper”; (2)

defendants did not receive any “other paper” from the plaintiff less than 30 days prior to

the filing of their Notice of Removal; and (3) neither the failure to act on the Offer of

Judgment nor any other information acquired by the defendants less than 30 days prior to

removal provides any new, additional, or different information from which it could be

first ascertained that the action was removable. Plaintiff’s Brief (Doc. 9) at 3. 

Alternatively, plaintiff argues that defendants have “failed to unambiguously establish

that the amount in controversy exceeds $75,000.” Id.

The motion to remand has been fully briefed and is now ripe for the Court’s

consideration.

II. Analysis.

“In 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 WL

3615041, * 2 (S.D. Ala. Oct. 30, 2009), citing McNutt v. General Motors Acceptance

Case 1:10-cv-00194-CG-N Document 19 Filed 06/29/10 Page 4 of 12
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 In Lowery, as in the instant action, the removal presents a timing issue under the second

paragraph of 28 U.S.C. § 1446(b).

5

Corp. of Indiana, Inc., 298 U.S. 178 (1936); Lowery v. Alabama Power Co., 483 F.3d

1184, 1210 (11th Cir.2007), cert. denied sub nom Hanna Steel Corp. v. Lowery, --- U.S.

----, 128 S.Ct. 2877 (2008). In a removal action, that burden is upon the defendant. Id,

citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). “[I]n the removal

context, where damages are unspecified, the removing party bears the burden of

establishing the jurisdictional amount by a preponderance of the evidence.” Lowery, 483

F.3d at 1208, citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57 (11th

Cir.1996) (adopting the “preponderance of the evidence” standard after examining the

various burdens of proof in different factual contexts), overruled on other grounds, Cohen

v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.2000). 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 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 “significant

federalism concerns” raised by removal jurisdiction). 

The how and when of removal is also significant. The Eleventh Circuit addressed

this matter in Lowery3

 as follows:

As a threshold matter, § 1446(a) answers the question of how

removal is accomplished, stating that a defendant may remove any

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 Section 1446 provides, in relevant part:

(a) A defendant or defendants desiring to remove any civil

action ... from a State court shall file in the district court ... a notice of

removal signed pursuant to Rule 11 of the Federal Rules of Civil

Procedure and containing a short and plain statement of the grounds for

removal, together with a copy of all process, pleadings, and orders served

upon such defendant or defendants in such action.

(b) 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 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.

 If the case stated by the initial pleading is not removable, a notice of

removal may be filed within thirty 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[.] 

28 U.S.C. § 1446. 

6

“civil action” by filing a notice of removal, signed pursuant to the

good faith requirements of Rule 11, which contains “a short and

plain statement of the grounds for removal.”[4

] 28 U.S.C. § 1446(a).

Section 1446(b) then answers the question of when an action is

removable, setting forth the preconditions for removal in two types

of cases: (1) those removable on the basis of an initial pleading; and

(2) those that later become removable on the basis of “a copy of an

amended pleading, motion, order or other paper.”[Footnote omitted]

§ 1446(b). Regardless of the type of case, a defendant must remove 

within thirty days of receiving the document that provides the basis

for removal. § 1446(b).

483 F.3d at 1211-1213 (emphasis added). As the Eleventh Circuit acknowledged,

“[w]hat constitutes ‘other paper’ [in the second category of cases], has been developed

judicially . . . [and] numerous types of documents have been held to qualify, [including]:

Case 1:10-cv-00194-CG-N Document 19 Filed 06/29/10 Page 6 of 12
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responses to requests for admissions, Wilson v. Gen. Motors Corp., 888 F.2d 779, 780

(11th Cir. 1989); settlement offers, Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759,

761-62 (5th Cir.2000); interrogatory responses, Akin v. Ashland Chem. Co., 156 F.3d

1030, 1036 (10th Cir.1998); deposition testimony, S.W.S. Erectors, Inc. v. Infax, Inc., 72

F.3d 489, 494 (5th Cir.1996); demand letters, Williams v. Safeco Ins. Co., 74 F.Supp.2d

925, 929 (W.D.Mo.1999); and email estimating damages, Callahan v. Countrywide Home

Loans, Inc., No. 3:06-105, 2006 WL 1776747, at *3-4 (N.D.Fla. June 26, 2006).” 483

F.3d at 1213, n. 62. 

The Eleventh Circuit in Lowery also stated that “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.” 483

F.3d at 1213 (emphasis added). The Eleventh Circuit further explained that:

Under the first paragraph of § 1446(b), a case may be removed on

the face of the complaint if the plaintiff has alleged facts sufficient to

establish the jurisdictional requirements. Under the second

paragraph, a case becomes removable when three conditions are

present: there must be (1) “an amended pleading, motion, order or

other paper,” which (2) the defendant must have received from the

plaintiff (or from the court, if the document is an order), and from

which (3) the defendant can “first ascertain” that federal jurisdiction

exists. § 1446(b). Under either paragraph, the documents received by

the defendant must contain an unambiguous statement that clearly

establishes federal jurisdiction. 

483 F.3d at 1215 (emphasis added), citing, Bosky v. Kroger Texas, LP, 288 F.3d 208, 211

(5th Cir.2002) (holding that grounds must be “unequivocally clear and certain”); Huffman

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In Pretka, the removal arose under the first paragraph of § 1446(b) and the Eleventh Circuit

clarified that, only as to removals based on the first paragraph of § 1446(b), namely removal

within thirty days of being served with the summons and initial complaint, is there no limitation

on the type of evidence that a defendant could offer once it timely filed a notice of removal. The

Eleventh Circuit held, in sum, “that the evidence the defendant may use to establish the

jurisdictional facts [under the first paragraph of § 1446(b)] is not limited to that which it received

from the plaintiff or the court.” 2010 WL 2278358 at * 21. 

8

v. Saul Holdings, LP, 194 F.3d 1072, 1078 (10th Cir.1999) (same). A panel of the

Eleventh Circuit has recently upheld these principles of Lowery as applied to cases

removed under the second paragraph of § 1446(b), including the requirement that the

“other paper” must constitute evidence “from the plaintiff.” Pretka v. Kolter City Plaza

II, Inc., 2010 WL 2278358 (11th Cir. June 8, 2010).5 Lowery’s “‘receipt from the

plaintiff’ rule is based on the second paragraph of § 1446(b), and that rule applies if ‘the

case stated by the initial pleading is not removable’ but the case ‘has become removable’

due to changed circumstances.” Id. at * 14 (emphasis added). In other words, “[t]he

traditional rule is that only a voluntary act by the plaintiff may convert a non-removable

case into a removable case.” Id., citing Insinga v. LaBella, 845 F.2d 249, 252 (11th Cir.

1988)(explaining the judicially created “voluntary-involuntary” rule that applies in

diversity cases). Such is the rationale given in Pretka for the rule that “a defendant cannot

show that a previously non-removable case ‘has become removable’ as a result of a

document created by the defendant.” Id, citing 28 U.S.C. § 1446(b) (second paragraph).

 In the instant case, defendants concede that the case was not removable as stated in

the initial pleadings because they could not ascertain the amount in controversy. Further,

defendants acknowledge that “Plaintiff’s deposition testimony and responses to Requests

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 Rule 68 of the Alabama Rules of Civil Procedure states, in pertinent part:

At any time more than fifteen (15) days before the trial begins, a party defending

against a claim may serve upon the adverse party an offer to allow judgment to be

taken against the defending party for the money or property or to the effect

specified in the offer, with costs then accrued. If within ten (10) days after the

service of the offer, the adverse party serves written notice that the offer is

accepted, either party may then file the offer and notice of acceptance together

with proof of service thereof and thereupon the clerk shall enter judgment. An

offer not accepted shall be deemed withdrawn and evidence thereof is not

admissible except in a proceeding to determine costs....

9

for Admissions and Interrogatories yielded [only] ‘I don’t know’ responses.” See

Defendants’ Opposition Brief (Doc. 14) at 13-14. Rather, the document relied upon by

the defendants in the instant case to establish the jurisdictional amount is the Offer of

Judgment, which they maintain was refused by the plaintiff and thus constituted the first

and only “affirmative statement from the Plaintiff that the amount in controversy

exceeded $75,000.” Id. at 14. This Offer of Judgment reads as follows:

COME NOW the Defendants, Anderson Trucking Service, Inc.,

Sunbelt Furniture Xpress, Inc., and Jerry Porter, and, pursuant to

Rule 68 of the Alabama Rules of Civil Procedure, offer to allow

judgment to be taken against them by the Plaintiff, Sandra P.

Humphries, for the sum of SEVENTY-EIGHT THOUSAND FIVE

HUNDRED AND NO/100 DOLLARS ($78,500.00), which sum

includes costs now accrued.

Id. at Exh. F (emphasis in original). The “refusal” defendants rely upon appears to be the

automatic expiration of the Offer of Judgment by operation of law when a plaintiff does

not accept it within ten days. Ala.R.Civ.P. 68.6

 

Defendants argue that, despite her silence on the matter, the expiration of the time

to respond to the Offer of Judgment constituted “other paper” which was “from the

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 For instance, inattention comes to mind, and could in no way be deemed to equate with a

statement by the plaintiff establishing that the amount in controversy exceeded the range of

possible values which defendant offered. 

10

plaintiff” and “triggered removability.” Defendants’ Opposition Brief (Doc. 14) at 15-20. 

Defendants’ argument fails on several grounds. First, Rule 68 of the Alabama Rules of

Civil Procedure specifically provides that “an offer not accepted shall be deemed

withdrawn and evidence thereof is not admissible except in a proceeding to determine

costs...” Withdrawal of an offer is entirely different from the “refusal” with which

defendants seek to bind the plaintiff. Nor have the defendants argued or offered any

authority for the proposition that this court need not give effect to the provision of Rule

68 that “evidence [of the plaintiff’s failure to accept the offer of judgment] is not

admissible except in a proceeding to determine cost.” 

Second, there clearly may be a number of reasons why a plaintiff might allow the

10-day period for accepting an offer of judgment to lapse.7

 Any assumption that the 10-

day period lapsed solely because the plaintiff rejects the notion that her claim is worth

less than $75,000.00 is pure speculation.

Finally, as the Eleventh Circuit recently emphasized:

Under the second paragraph of § 1446(b), the defendant's receipt of a

document indicating that the case “has become removable” opens a

new 30-day window for removal. Id. (referring to “other paper from

which it may first be ascertained that the case is one which is or has

become removable”). The traditional rule is that only a voluntary act

by the plaintiff may convert a non-removable case into a removable

one. See Insinga v. LaBella, 845 F.2d 249, 252 (11th Cir.1988)

(explaining the judicially created “voluntary-involuntary” rule that

applies in diversity cases);[footnote omitted] see also Weems v.

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Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir.1967). Thus, a

defendant cannot show that a previously non-removable case “has

become removable” as a result of a document created by the

defendant. See 28 U.S.C. § 1446(b) (second paragraph).

Pretka, 2010 WL 2278358 at * 14. The Offer of Judgment relied upon by the defendants

in the instant case was created by the defendants and not the plaintiff. Accordingly, the

failure of plaintiff to respond to the Offer of Judgment, and as a result, its expiration by

operation of law, does not make this case removable. 

III. Conclusion.

For the reasons stated above, it is recommended that defendants’ motion to remand

be GRANTED and that the Clerk directed to take such steps as are necessary to transfer

this action back to the Circuit Court of Baldwin County, Alabama.

The instructions which follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the magistrate

judge.

Done this 29th day of June 2010.

 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

.

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Effective December 1, 2009, the time for filing written objections was extended to “14 days

after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

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RIGHTS AND RESPONSIBILITIES FOLLOWING

RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within

fourteen days of the date of service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988);

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for

challenging the findings and recommendations of the magistrate judge is set out in more detail in

SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate Judge’s Recommendation” within

[fourteen] days8 after being served with a copy of the recommendation, unless a

different time is established by order. The statement of objection shall specify

those portions of the recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. §

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the cost

of the transcript.

Done this 29th day of June, 2010.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

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