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The Complaint can be found at Doc. 1, pp. 40-67.

 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PEGGY MORGAN BENDER, : 

ADMINISTRATRIX OF THE ESTATE : 

OF DEJURNITTE BENDER, : 

: 

Plaintiff, : 

: 

vs. : CIVIL ACTION 09-0735-KD-M 

: 

MAZDA MOTOR CORPORATION, et al.,: 

: 

Defendants. : 

REPORT AND RECOMMENDATION

The Motion to Remand filed by Plaintiff (Doc. 6) has been

referred for report and recommendation, under 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2. Jurisdiction has been invoked

in this Court under 28 U.S.C. § 1332, pursuant to diversity (Doc.

1). After consideration, it is recommended that Plaintiff’s

motion be granted and that this action be remanded to the Wilcox

County Circuit Court for all further proceedings.

The facts, very briefly, are as follows. On June 23, 2007,

DeJurnitte Bender was driving his 1991 Mazda Miata MX-5 on County

Road 32 in Wilcox County, Alabama when he became involved in a

low-speed accident (Complaint, ¶¶ 13-14).1

 The car’s “airbag

improperly deployed causing [the driver’s] injuries resulting in

his death” (Complaint, ¶ 14). Plaintiff Peggy Morgan Bender is

the surviving spouse and Administratrix of the Estate of

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Pugh Enterprises was voluntarily dismissed from this action

prior to the removal of this action (see Doc. 1, p. 1 n.1; see also

Doc. 1, p. 36).

DeJurnitte Bender (Complaint, ¶ 1). Plaintiff brought this

action in the Wilcox County Circuit Court, asserting the

following claims against all of the Defendants: (1) The car was

defective and unreasonably dangerous under the Alabama Extended

Manufacturer’s Liability Doctrine; (2) negligence; (3)

wantonness; (4) negligent failure to warn; (5) wanton failure to

warn; (6) breach of implied warranty (Complaint). The Defendants

have been named as follows: Mazda Motor Corporation (Complaint,

¶ 2); Mazda North America Operations, Inc, Mazda Motor of

America, Inc., Mazda North America, Inc., Mazda Research and

Development of North America, Inc. (id. at ¶ 3); Ford Motor

Company (id. at ¶ 4); Jimmy Pugh (id. at ¶ 5); J & G Auto Sales

(id. at ¶ 6); Pugh Enterprises, Inc.2

 (id. at ¶ 7); and

Fictitious Defendants Nos. 10-35 (Complaint, ¶¶ 46-72).

On November 10, 2009, the Defendants removed the action to

this Court, asserting diversity jurisdiction (Doc. 1). Less than

a month later, Plaintiff filed a Motion to Remand (Doc. 6). 

Defendants have responded to that Motion (Doc. 9) to which

Plaintiff has replied (Doc. 11).

In its removal petition, Defendants allege that this Court

has diversity jurisdiction under 28 U.S.C. § 1332 and that this

action is removable pursuant to 28 U.S.C. § 1446 (Doc. 1). In a

removal action, the party asserting jurisdiction has the burden

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of establishing proof of jurisdiction by a preponderance of the

evidence. McNutt v. General Motors Acceptance Corp. of Indiana,

Inc., 298 U.S. 178 (1936); see also Lowery v. Alabama Power Co.,

483 F.3d 1184, 1210 (11th Cir. 2007), cert. denied sub nom Hanna

Steel Corp. v. Lowery, 128 S.Ct. 2877 (2008). In a removal

action, that burden is upon the defendant. Wilson v. Republic

Iron & Steel Co., 257 U.S. 92 (1921). Removal is a statutory

remedy which must be narrowly construed so as to limit federal

jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941); Robinson v. Quality Ins. Co., 633 F.Supp. 572 (S.D. Ala.

1986). 

The Court notes that any civil action over which the

district court would have original jurisdiction may be removed by

the defendant to the district court for the district in which the

action is pending. 28 U.S.C. § 1441(a). The district court has

jurisdiction over actions between citizens of different states so

long as all plaintiffs are diverse from all defendants,

Strawbridge v. Curtiss, 7 U.S. 267 (1806), and the amount in

controversy exceeds $75,000. 28 U.S.C. § 1332(b). 

In this action, the parties do not agree on whether the

parties are actually diverse or the amount in controversy. The

Court will take up the second of these prongs as it will dispose

of the Motion and render unnecessary a discussion of the first

prong. 

As noted earlier, for this Court to entertain jurisdiction

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over this action, it will be necessary for the Defendants to

demonstrate that the amount in controversy exceeds $75,000. In

the Complaint, Plaintiff seeks “punitive damages in an amount

which will adequately reflect the wrongfulness of the defendants’

conduct, which proximately caused DeJurnitte Benders’ death”

(Complaint ¶¶ 21, 26, 31, 36, 41, 44, 72). Though it appears

seven times, it is the only statement in the Complaint regarding

the value of this case. 

In removing this action, Defendants note that the claims

were brought under the Alabama Wrongful Death Act which allows

for only punitive damages (see Doc. 1, p. 7). As support for

their assertion that this action is clearly worth more than the

jurisdictional requisite of $75,000, Defendants direct this

Court’s attention to a recent decision by one of our sister

courts, the U.S. District Court for the Middle District of

Alabama, Roe v. Michelin North America, Inc., 637 F.Supp.2d 995

(M.D. Ala. 2009) (Doc. 1, p. 7). 

The Court first notes that the Eleventh Circuit Court of

Appeals, in Lowery, held that a party cannot determine the

jurisdictional value of a case by gathering evidence from outside

sources. Lowery, 483 F.3d at 1221. Specifically, the Court

stated as follows:

Defendants must establish the jurisdictional

amount by a preponderance of the evidence. 

We note, however, that in situations like the

present one-where damages are unspecified and

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only the bare pleadings are available-we are

at a loss as to how to apply the

preponderance burden meaningfully. We have

no evidence before us by which to make any

informed assessment of the amount in

controversy. All we have are the

representations relating to jurisdiction in

the notice of removal and the allegations of

the plaintiffs' [] complaint. As such, any

attempt to engage in a preponderance of the

evidence assessment at this juncture would

necessarily amount to unabashed guesswork,

and such speculation is frowned upon. See

Lindsey v. Ala. Tel. Co., 576 F.2d 593, 595

(5th Cir.1978) (noting, in a removed class

action, that “it was not open for defendants

to attempt to show” the requisite amount in

controversy per capita where the complaint

made insufficient allegations, “[n]or was it

open to the district court to speculate” on

whether the jurisdictional facts existed).

[W]e conclude that the removal-remand

scheme set forth in 28 U.S.C. §§ 1446(b) and

1447(c) requires that a court review the

propriety of removal on the basis of the

removing documents. If the jurisdictional

amount is either stated clearly on the face

of the documents before the court, or readily

deducible from them, then the court has

jurisdiction. If not, the court must remand.

Under this approach, jurisdiction is either

evident from the removing documents or remand

is appropriate. 

Lowery, 483 F.3d at 1211-12. These are plain spoken words. The

Court has read Roe, but finds it unconvincing, especially in

light of the strong dictate of Lowery. 

In this action, the Court finds that the amount in

controversy is not readily deducible from the documents before

the Court. Defendants have failed to meet its burden of proving,

by a preponderance of the evidence, that the amount in

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controversy here meets the jurisdictional requirement of $75,000. 

As such, this action has been improperly removed to this Court.

Therefore, it is recommended that Plaintiff’s Motion to

Remand (Doc. 6) be granted and that this action be remanded to

the Wilcox County Circuit Court for all further proceedings.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL 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 days 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.

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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 26th day of January, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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