IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

KENNY HARDEN, )

 )

Plaintiff, )

)

vs. ) CIVIL ACTION 09-00841-KD-B

 )

KENNETH ARLIN PEEK, JR., )

et al., )

 )

Defendants. )

REPORT AND RECOMMENDATION

This case is before the Court on Plaintiff Kenny Harden’s

Motion to Remand (Doc. 4), which was referred to the undersigned for

a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Based upon a careful review of Plaintiff’s motion, supporting

briefs, and the briefs in opposition, the undersigned RECOMMENDS

that Plaintiff’s Motion to Remand be DENIED.

I. Background

On January 23, 2009, Plaintiff Kenny Harden initially filed

this wrongful death action in the Circuit Court of Dallas County,

Alabama, as the personal representative of the estate of Javis Toto.

(Doc. 1, Ex. 1). The crux of his claim is that Mr. Toto was killed

on August 15, 2008, when the vehicle in which he was traveling as

a passenger was struck by a vehicle operated by Defendant Kenneth

Arlin Peek, Jr. Plaintiff has named Peek as a Defendant, as well

as Poch Staffing, Inc., d/b/a Trilliam Construction Services.

According to Plaintiff, Peek was acting within the line of and scope

of his employment with Defendant Poch Staffing, Inc. at the time of

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the accident. Plaintiff’s Complaint includes a claim for

unspecified punitive damages under the Alabama Wrongful Death Act.

(Doc. 1, Ex. 2). 

Defendant Peek filed a Notice of Removal, which Defendant Poch

consented to, on the basis of diversity of citizenship pursuant to

28 U.S.C. § 1332(a) and 28 U.S.C. § 1441. Harden v. Peek, Civil

Action No. 09-00091-KD-B, S.D. Alabama. (Doc. 1). In the Notice,

Peek argued that Plaintiff and Defendants are citizens of different

states, and that the court can readily deduce that Plaintiff’s claim

seeks damages in excess of the $75,000 jurisdictional amount. Peek

further argued that wrongful death is, by its nature, so substantial

as to make it readily apparent that the amount in controversy

requirement is satisfied. Plaintiff sought remand on the ground

that Defendant Peek had failed to meet his burden of showing by a

preponderance of evidence that the amount in controversy was in

excess of this Court’s jurisdictional minimum. (Id. at Doc. 3).

Upon review, the unsigned held that there was nothing about

Plaintiff’s general allegation, of wanton/reckless conduct on the

part of Defendant Peek, that standing alone could lead one to

readily conclude that the amount in controversy in this case exceeds

$75,000, as required by the Eleventh Circuit’s Lowery v. Alabama

Power Co., 483 F.3d 1184 (llth Cir. 2007) decision. Thus, the

undersigned recommended that Plaintiff’s Motion to Remand be

granted. In an Order dated May 15, 2009, the District Court

remanded this case to the Circuit Court of Dallas County.(Id. at

Doc. 18). 

On December 21, 2009, Defendant Poch Staffing, Inc. filed a

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1

The text of the email is as follows: 

Paul:

Gil told me that you and he talked on the phone 

about this case today. He asked me to get the

following settlement demand to you-$1.5 million

each for Dominguez and Toto from both defendants,

for a total settlement of $3 million. Also, 

please get back with us on the available insurance

coverage as soon as possible.

3

second Notice of Removal (Doc. 1), which was joined in by Defendant

Peek. Defendants assert that this case is removable because there

is complete diversity of citizenship, and because the amount in

controversy exceeds $75,000. As grounds for Removal, Defendants

have relied upon the arguments previously advanced, that is, that

wrongful death is, by its nature, so substantial as to make it

readily apparent that the amount in controversy requirement is

satisfied. Defendants also rely upon an email1 from Plaintiff’s

counsel, dated December 3, 2009, offering to settle Plaintiff’s

claim for $1.5 million. According to Defendants, the email

constitutes “other paper” that may be used to establish that the

jurisdictional amount has been met. 

Plaintiff, in turn, filed the instant Motion to Remand (Doc.

4). In his motion, Plaintiff argues that Defendants’ second removal

is nothing more than an attempt to have this Court reconsider its

prior Order remanding this action to Dallas County, and as such, it

is improper. According to Plaintiff, 28 U.S.C. § 1446(b) allows a

defendant to remove a previously remanded case where subsequent

pleadings or events reveal a new and different basis for removal;

however, in this action, Defendant’s Notice of Removal is not

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premised on a new and different basis, but is merely reasserting the

grounds that were rejected in Defendants’ initial removal attempt.

Plaintiff notes that such is apparent from the fact that Defendants

expressly adopted and incorporated the previous arguments asserted

in the first removal petition. Plaintiff further asserts that

because the email containing Plaintiff’s settlement offer, serves

only to add evidentiary support to Defendants’ previous arguments,

as opposed to revealing a new and different basis for removal, this

case should be remanded and Plaintiff should be awarded fees and

expenses incurred in opposing Defendants’ unreasonable removal.

In opposition to Plaintiff’s Motion to Remand, Defendants argue

that the email sent by Plaintiff’s counsel, which included

Plaintiff’s $1.5 million settlement demand, provides clear and

unequivocal evidence that the amount in controversy is far in excess

of $75,000. According to Defendants, courts routinely allow general

theories to be replicated in second removal petitions when new

facts, events, or “other papers” demonstrate the existence of

federal jurisdiction. Defendants contend that the email constitutes

an “other paper” which fundamentally changed the case because

Plaintiff placed a value on his case for the first time. In

addition, Defendants argue that if Plaintiff’s position were

accepted, then plaintiff attorneys could engage in bad faith

practices to “hide” or “misrepresent” the true value of their cases

in order to avoid federal jurisdiction. 

II. Discussion

United States “district courts ... have original jurisdiction

of all civil actions where the matter in controversy exceeds the sum

Case 2:09-cv-00841-KD-B Document 21 Filed 04/16/10 Page 4 of 16
2 28 U.S.C. § 1446 (b) sets forth the procedure for

 removal of a civil action:

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 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 the amended

5

or value of $75,000, exclusive of interest and costs, and is between

... [c]itizens of different States.” 28 U.S.C. § 1332(a)(1). “[A]ny

civil action brought in a State court of which the district courts

of the United States have original jurisdiction, may be removed by

the defendant or defendants, to the district court of the United

States for the district and division embracing the place where such

action is pending.” 28 U.S.C. § 1441(a). Generally, the party

seeking removal bears the burden of showing that federal

jurisdiction exists. Diaz v. Sheppard, 85 F.3d. 1502, 1509 (llth

Cir. 1996). The Court’s jurisdiction over a removed action is

evaluated based on the record as it existed at the time of removal.

Lowery, 483 F.3d at 1211. Because removal jurisdiction is strictly

construed, all doubt is resolved in favor of remand. Burns v.

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

As indicated, Defendants’ first attempt to remove this action

under the first prong of Section 1446 (b)2 was found to be lacking,

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pleading, motion, order or other paper from which it

may first be ascertained that the case is one which is

or has become removable, except that a case may not be

removed on the basis of jurisdiction conferred by 

section 1332 of this title more than 1 year afer 

commencement of the action.

28 U.S.C. § 1446 (b) 

6

and as a result, this case was remanded back to the Circuit Court

of Dallas County. Defendants now seek to remove this case under the

second prong of Section 1446(b), and the question presented is

whether Defendants have provided different grounds for removal, or

whether they are simply attempting to have the Court reconsider the

same ground that was previously considered and rejected. The

parties appear to agree that “a party is not entitled, under

existing laws, to file a second petition for removal upon the same

grounds, where, upon the first removal by the same party, the

federal court declined to proceed and remanded the suit....” St.

Paul & C. R. Co. v. McLean, 108 U.S. 212, 217, 2 S.Ct. 498, 27 L.Ed.

703 (1883). Thus, this dispute boils down to whether the settlement

demand from Plaintiff’s counsel constitutes a new ground for

removal, or whether it is merely additional evidentiary support for

the same ground that was previously considered and rejected. 

In support of its position, Plaintiff relies on Nicholson v.

Nat’l Accounts, Inc., 106 F. Supp. 2d 1269 (S.D. Ala. 2000), and

similar cases, to argue that the settlement demand does not

constitute a new ground for removal. In Nicholson, the defendant

removed a state court action which involved claims for promissory

estoppel, equitable estoppel, and fraud on the ground that the

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plaintiff’s claims were completely preempted by the Employee

Retirement Income Security Act (“ERISA”). The trial court held that

the claims were not completely preempted because the plaintiff did

not have standing to sue under ERISA. After the case was remanded

to state court, the defendant sought a second removal following the

plaintiff’s deposition, and argued that the plaintiff’s deposition

testimony showed that the court was incorrect in holding that the

plaintiff was not a participant or beneficiary with standing to sue

under ERISA. The trial court recognized that 28 U.S.C. § 1446(b)

“allows a defendant to remove a previously remanded case where

subsequent pleadings or events reveal a new and different basis for

removal.” Id. at 1272 (citations omitted). The trial court went on

to hold that 28 U.S.C. § 1446(b) must be read in harmony with 28

U.S.C. § 1447(d), which provides that a remand order “is not

reviewable on appeal or otherwise,” and that the defendant’s second

removal was “nothing more than a creative attempt to have the court

reconsider its prior remand order.” Id.

Defendants, on the other hand, rely on Sudduth v. Equitable

Life Assurance Soc’y, 2007 U.S. Dist. LEXIS 63174 (S.D. Ala. Aug.

27, 2007) and similar cases to argue that the settlement demand from

Plaintiff’s counsel constitutes a new ground upon which Defendants

are entitled to rely in support of the second Removal. In Sudduth,

the defendants removed a case from state court on the ground that

an individual defendant had been fraudulently joined in order to

defeat diversity jurisdiction. The court granted the plaintiff’s

motion to remand after finding that the defendants had not met their

burden on the issue. Later, the defendants sought to remove the

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case a second time and argued that the plaintiff’s deposition

testimony clearly established that the individual defendant had been

fraudulently joined. In denying the plaintiff’s request for remand,

the court held that “[28 U.S.C.] § 1446(b) allows [a defendant] to

file successive removals based on [a] different factual basis,” at

least where different facts are obtained from the plaintiff. The

court questioned how 28 U.S.C. § 1447(d) could impose a greater

restriction on second removals than that imposed by 28 U.S.C. §

1446(b) and held that in any event, the Nicholson decision was not

implicated where the second removal invoked a “new factual basis on

which to determine the diversity issue.” Id. The court specifically

noted that although both remands centered on the theory of

fraudulent joinder, the first removal questioned whether the

plaintiff had even dealt with the individual defendant who was

alleged to have been fraudulently joined whereas the second removal

was based on the plaintiff’s previously unavailable deposition

testimony, which showed that the individual defendant did not say

or do anything that would support a cause of action against him.

Thus, there was a new factual basis for the motion, and the second

removal was permitted.

The Eleventh Circuit has not addressed this issue; however, the

three Circuit courts that have addressed this issue have held that

successive removals are permitted when predicated on different

grounds. See In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220,

n.8 (3rd Cir. 2000); Benson v. S.I. Handling Sys., Inc., 188 F.3d

780, 782 (7th Cir. 1999); S.W.S. Erectors v. Infax, Inc., 72 F.3d

489, 492 (5th Cir. 1996). “The prohibition against removal ‘on the

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same ground’ does not concern the theory on which federal

jurisdiction exists (i.e., federal question or diversity

jurisdiction), but rather the pleading or event that made the case

removable.” S.W.S. Erectors, 72 F.3d at 492 (construing McLean, 108

U.S. at 217). A clear reading of these cases reflects that under

28 U.S.C. § 1446(b), a defendant’s right to remove is triggered by

the “receipt by the defendant” of an “amended pleading, motion,

order or other paper” evidencing that the case is removable.

In the case at hand, Defendants’ previous unsuccessful attempt

to remove this case was premised solely on the Complaint. At that

time, there was nothing before the Court that indicated that the

amount in controversy exceeded the jurisdictional threshold. As a

result, this case was remanded to state court. Back in state court,

Plaintiff’s counsel sent an email in which he offered to settle

Plaintiff’s claims for $1.5 million. Armed with this information,

Defendants removed this case a second time. The undersigned finds

that while this case was previously removed on the same theory,

diversity jurisdiction, the grounds are different because in this

instance, Defendants are essentially relying on a change in

circumstances, namely the fact that Plaintiff and his counsel have

communicated an offer to settle the case for $1.5 million. So,

while the Court is revisiting the amount in controversy issue, it

is doing so based upon different facts.

The facts of this case are strikingly similar to those present

in Benson v. S.I. Handling Sys., Inc., 188 F.3d 780 (7th Cir. 1999).

In Benson, the defendants had attempted unsuccessfully to have their

case removed to federal court on the basis of diversity

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jurisdiction. The trial court remanded the case after determining

that the papers did not establish the amount in controversy. Later,

during discovery in state court, the plaintiffs revealed that they

had suffered more than $75,000 in damages; thus, the defendants

sought to remove the case a second time. The trial court denied

removal on the ground that successive removals are not permissible

under 28 U.S.C. § 1446(b). In reversing the trial court, the

Seventh Circuit held that a reading of 28 U.S.C. § 1446(b) implies

that an unsuccessful earlier attempt to remove is not dispositive.

According to the Court, “[a] premature removal may lead to a

perfectly justified remand; but when matters change--for example,

by dismissal of a party whose presence spoiled complete diversity

of citizenship, or by a disclosure that the stakes exceed the

jurisdictional amount--the case may be removed, provided only that

it is less than one year old.” Id. at 782-783.

 The Seventh Circuit further observed that:

 The only effect of adopting an absolute one-bit

 rule would be to encourage plaintiffs to be coy...

 it may be hard for defendants to make and 

 substantiate a realistic estimate early in the

 case if plaintiffs keep mum. That is why the 

 district judge remanded following defendants’ 

 initial notice of removal. Plaintiffs then

 “fessed up”, apparently believing that their

 earlier silence(coupled with the failed removal)

 had locked the case into state court. We see no

 reason to reward game-playing of this kind.

 For good or ill, Congress has authorized the

 removal of cases in which the parties are

 of diverse citizenship and the stakes exceed 

 $75,000. When either side to such a suit prefers

 the federal forum, that preference prevails. 

Id. at 783.

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Like the defendants in Benson, the Defendants in the instant

case are entitled to seek removal, for a second time, based on a

change in circumstances, namely the fact that Plaintiff has offered

to settle her claim for $1.5 million. Defendants herein are not

merely reasserting that the Complaint establishes that the amount

in controversy exceeds $75,000, they are arguing that Plaintiff

himself has now placed the value of his case above the

jurisdictional limit. Accordingly, the next question to be

addressed is whether the settlement demand from Plaintiff’s counsel

qualifies as “other” paper under 28 U.S.C. § 1446(b) and is

sufficient to trigger the second prong of the statute. 

In Lowery, the Eleventh Circuit observed that while courts have

not articulated a single test for identifying what constitutes

“other paper” under 28 U.S.C. § 1446(b), numerous types of documents

have been held to qualify. “They include: responses to request for

admissions, Wilson v. Gen. Motors Corp., 888 F.2d 779, 780 (llth

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 (l0th 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, Callahen v. Countrywide Home Loans, Inc., No. 3:06-105,

2006 U.S. Dist. LEXIS 42860, 2006 WL 1776747, at *3-*4 (N.D. Fla.

June 26, 2006).” 

As noted supra, Defendants have submitted an email received

from Plaintiff’s counsel wherein he offers to settle Plaintiff’s

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claims for $1.5 million. Defendants argue, and Plaintiff does not

dispute, that settlement demands can qualify as “other papers” under

Lowery. As observed by the Court in Jackson v. Select Portfolio

Servicing, Inc., 651 F. Supp. 2d 1279 (S.D. Ala. 2009), “the

question is whether this specific settlement demand, given all the

evidence presented, established by a preponderance of the evidence

that the amount in controversy exceeds $75,000.” Id. at 1281.

“While [a] settlement offer, by itself, may not be determinative,

it counts for something.” Burns v. Windsor Ins. Co., 31 F.3d 1092,

1097 (llth Cir. 1994). “What it counts for, however, depends on the

circumstances. Settlement offers commonly reflect puffing and

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

in measuring the preponderance of the evidence. 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.” 651 F. Supp. 2d at 1281 (citations

omitted). 

In this case, Defendants have asserted that the settlement

demand constitutes “other paper” that is sufficient to establish

that the jurisdictional amount in this case exceeds $75,000. While

Plaintiff argues that Defendants should be foreclosed from raising

the amount in controversy issue again, Plaintiff has not disputed

Defendants’ assertion that the settlement demand constitutes “other

paper” and is sufficient to establish the jurisdictional amount.

Nor has Plaintiff made any attempt to disavow the settlement demand

of $1.5 million. In fact, Plaintiff’s brief suggests that the

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In an earlier opinion, the Eleventh Circuit affirmed an

order denying a motion to remand based on the plaintiff's failure

to challenge the defendant's allegation of the amount in

controversy and stated:

 Plaintiff presented no evidence to contradict

 defendant's damages calculations, nor did plaintiff

 deny the damages exceeded the jurisdictional amount

 when given the opportunity. Under these circumstances,

 the district court correctly determined that defendant 

 carried its burden of establishing removal jurisdiction

13

settlement demand was made after substantial discovery had been

undertaken, and the parties were eyeing possible trial dates. (Doc.

4 at p.3). This certainly suggests that the settlement demand was

not mere puffing made at the inception of the case. Accordingly,

the undersigned finds that under the facts of this case, where

Plaintiff has asserted a wrongful death claim, has submitted a

settlement demand for $1.5 million after having conducted

substantial discovery, and has made no attempt to disavow the

settlement demand or to dispute Defendants’ contention that the

demand constitutes other evidence that the value of Plaintiff’s

claim is in excess of the jurisdictional amount, that the

jurisdictional amount has been established. See AAA Abachman

Enters. v. Stanley Steemer Int’l, Inc., 268 Fed. Appx. 864, 866-67

(llth Cir. 2008)(unpublished)(In a declaratory action, the Court

held that were the plaintiff, who had submitted a settlement demand

seeking more than $75,000 in damages, had the opportunity to submit

evidence that the value of his rights was less than $75,000 but

failed to do so, the plaintiff’s own valuation of the monetary worth

of his rights supported the defendant’s assertion that the amount

in controversy was satisfied)3; Katz v. J.C. Penney, 2009 U.S. Dist.

Case 2:09-cv-00841-KD-B Document 21 Filed 04/16/10 Page 13 of 16
 was correct [sic], and the court's decision to deny 

 plaintiff's remand motion is affirmed.

Sierminski v. Transsouth Financial Corp., 216 F.3d 945, 949 (llth

Cir. 2000).

14

LEXIS 51705 (S.D. Fla. June 1, 2009)(Court held that the defendant

met its burden of establishing the amount in controversy based on

information set forth in the plaintiff’s pre-suit package, coupled

with the plaintiff’s failure to deny or otherwise contradict the

information contained in the package). The undersigned thus

recommends that Plaintiff’s Motion to Remand be denied.

III. Conclusion

Based upon a careful review of Plaintiff’s motion, supporting

briefs, and the briefs in opposition, the undersigned RECOMMENDS

that Plaintiff’s Motion to Remand be DENIED.

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate Judge.

DONE this 16th day of April, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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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). 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,

in part, 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 ten 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.

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. Opposing party’s response to the objection. Any opposing

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party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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