IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

AARON MILLER, )

)

Plaintiff, )

)

v. ) Civil Action No. 15-00181-KD-N

)

ROYAL OAK ENTERPRISES LLC; )

THE BRINKMAN CORPORATION; )

WINN DIXIE OF MONTGOMERY, )

LLC; JAMES WINN, et al. )

)

Defendants. )

REPORT AND RECOMMENDATION

This matter is before the undersigned United States Magistrate Judge on 

Plaintiff’s Motion to Remand (Doc. 7), Defendant’s responses in opposition (Docs. 11, 

12, 15) and Plaintiff’s reply (Doc. 13). The Motion has been referred to the 

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

Upon consideration, and for the reasons stated herein, it is recommended that 

Plaintiff’s Motion to Remand (Doc. 7, 13) be DENIED.

I. Background

On December 17, 2014, Plaintiff Aaron Miller (“Plaintiff”) filed a complaint 

against Defendant Royal Oak Enterprises LLC (“Defendant”) in the Circuit Court of 

Mobile County, Alabama. Doc. 1 at 8. On April 2 2015, Defendant removed the case 

to this Court pursuant to 28 U.S.C. §§ 1441 and 1446, alleging diversity under 28 

U.S.C. § 1332(a)(1) as the sole basis for the Court’s subject-matter jurisdiction. See 

generally Doc. 1. Plaintiff has filed a Motion to Remand (Doc. 7) pursuant to 28 

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U.S.C. § 1447(c), arguing that Defendant has failed to meet its burden of 

demonstrating subject-matter jurisdiction in this action. Defendant has timely 

responded (Docs. 11, 12, 15) in opposition to the motion.

II. Analysis

“It is . . . axiomatic that the inferior federal courts are courts of limited 

jurisdiction. They are ‘empowered to hear only those cases within the judicial power 

of the United States as defined by Article III of the Constitution,’ and which have 

been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of 

S. Ala. v. Am. Tobacco Co., 168 F. 3d 405, 409 (11th Cir. 1999) (quoting Taylor v. 

Appleton, 30 F. 3d 1365, 1367 (11th Cir. 1994)). 

Generally, a defendant may remove “any civil action brought in a State court 

of which the district courts of the United States have original jurisdiction . . . to the 

district court of the United States for the district and division embracing the place 

where such action is pending.”1 28 U.S.C. § 1441(a). See also Roe v. Michelin N. 

Am., Inc., 613 F.3d 1058, 1060 (11th Cir. 2010) (“If a state-court complaint states a 

case that satisfies federal jurisdictional requirements, a defendant may remove the 

action to federal court pursuant to 28 U.S.C. § 1446(b).”). “Just as a plaintiff 

bringing an original action is bound to assert jurisdictional bases under Rule 8(a), a 

removing defendant must also allege the factual bases for federal jurisdiction in its 

notice of removal under [28 U.S.C. ]§ 1446(a)[,]” Lowery v. Alabama Power Co., 483 

F. 3d 1184, 1216-17 (11th Cir. 2007), and “bears the burden of proving that federal 

 1 Like the present action, Roe expressly considered the propriety of removal “under the first 

paragraph of § 1446(b)...” 613 F.3d at 1061 n.4.

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jurisdiction exists.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). 

Moreover, the law is clear that, “ ‘[b]ecause removal jurisdiction raises significant 

federalism concerns, federal courts are directed to construe removal statutes 

strictly. Indeed, all doubts about jurisdiction should be resolved in favor of remand 

to state court.’ ” City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F. 3d 1310, 1313 

(11th Cir. 2012) (quoting Univ. of S. Ala., 168 F. 3d at 411 (citation omitted)).

Defendant’s sole basis for removal is 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. See Darden v. Ford Consumer 

Finance Co., 200 F. 3d 753, 755 (11th Cir.2000) (to qualify for diversity jurisdiction, 

complaint must establish “complete diversity of the parties’ citizenship and an 

amount in controversy exceeding $75,000”); Triggs v. John Crump Toyota, Inc ., 154 

F. 3d 1284, 1287 (11th Cir.1998) (similar). “In light of the federalism and 

separation of powers concerns implicated by diversity jurisdiction, federal courts are 

obligated to strictly construe the statutory grant of diversity jurisdiction ... [and] to 

scrupulously confine their own jurisdiction to the precise limits which the statute 

has defined.” Morrison v. Allstate Indem. Co., 228 F. 3d 1255, 1268 (11th Cir.2000) 

(citations omitted).

In its notice of removal, Defendant has properly alleged facts establishing 

that this is a civil action “between citizens of different States[,]”2 (28 U.S.C. § 

 2 Specifically, Plaintiff, a natural person, is alleged to be a citizen of Alabama, while Defendants are

alleged to be citizens of Georgia, Texas, Florida, and Mississippi. See 28 U.S.C. § 1332(c)(1) 

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1332(a)(1)) and Plaintiff does not challenge the allegations supporting diversity of 

citizenship. Doc. 11 at 4. Plaintiff does, however, challenge whether the amount in 

controversy exceeds $75,000, exclusive of interest and costs. Doc. 7.

Plaintiff’s complaint alleges state law claims for negligence, wantonness, 

Alabama Extended Manufacturers Liability Doctrine (AEMLD), and breach of

implied and express warranty. Doc. 1 at 11-18. These claims arise from Plaintiff’s 

injuries allegedly caused by Defendant’s product. Id. The complaint does not plead a 

specific amount of damages, instead demanding “compensatory and punitive 

damages” under each count. Id.

The Eleventh Circuit has held that where a complaint specifically claims 

damages less than the requisite jurisdictional amount for diversity jurisdiction, a 

defendant must prove to a “legal certainty” that plaintiff's claims would not yield a 

recovery less than the jurisdictional amount to keep a removed case in federal court. 

See, e.g., Burns v. Windsor Ins. Co., 31 F. 3d 1092, 1095 (11th Cir. 1994). However, 

when the complaint contains an unspecified demand for damages, a removing 

defendant need only prove by a preponderance of the evidence that the amount in 

controversy exceeds the jurisdictional requirement. See, e.g., Roe v. Michelin N. 

Am., Inc., 613 F. 3d 1058, 1061 (11th Cir. 2010); Tapscott v. MS Dealer Serv. Corp., 

77 F. 3d 1353, 1356–57 (11th Cir. 1996); Moss v. Voyager Ins. Cos., 43 F. Supp. 2d 

 

(generally, “for the purposes of this section and section 1441 of this title . . . a corporation shall be 

deemed to be a citizen of every State and foreign state by which it has been incorporated and of the 

State or foreign state where it has its principal place of business . . . ”).

While Plaintiff has also sued fictitious defendants, “[i]n determining whether a civil action is 

removable on the basis of the jurisdiction under section 1332(a) . . . the citizenship of defendants 

sued under fictitious names shall be disregarded.” 28 U.S.C. § 1441(b)(1).

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1298, 1301 (M.D. Ala. 1999). “In cases where plaintiff has made such an unspecified 

damages demand, ‘a lower burden of proof is warranted because there is simply no 

estimate of damages to which a court may defer.’ ” Moss, 43 F. Supp. 2d at 1301 

(citing Tapscott, 77 F. 3d at 1356–57).

Plaintiff contends that the amount in controversy is below the $75,000 

threshold. To support this contention Plaintiff has submitted a stipulation stating: 

"that under no circumstances shall Plaintiff seek nor accept more than $75,000 even 

if the jury verdict exceeds that amount." Doc. 13. Plaintiff’s only other statement is 

that based on this stipulation the amount in controversy is not met and this court 

does not have jurisdiction. Id.

“If a 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, 613 F. 3d at 1061 (quotation omitted). See also Williams, 269 F.3d at 1319 

(“Where, as here, the plaintiff has not pled a specific amount of damages, the 

removing defendant must prove by a preponderance of the evidence that the 

amount in controversy exceeds the jurisdictional requirement.”). “In some cases, 

this burden requires the removing defendant to provide additional evidence 

demonstrating that removal is proper.” Roe, 613 F. 3d at 1061 (citing Pretka v. 

Kolter City Plaza II, Inc., 608 F. 3d 744 (11th Cir. 2010)). The Eleventh Circuit has 

explained that “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 

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jurisdiction. If not, the court must remand.” Lowery, 483 F.3d at 1211. Moreover, 

because “the district court has before it only the limited universe of evidence 

available when the motion to remand is filed-i.e., the notice of removal and 

accompanying documents,” if that evidence is inadequate to establish jurisdiction, 

then “neither the defendants nor the court may speculate in an attempt to make up 

for the notice’s failings.” Id. at 1214-15 (footnotes omitted). “The existence of 

jurisdiction should not be divined by looking to the stars.” Id. at 1215.

Defendant’s response to Plaintiff’s motion to remand makes the following 

allegations in support of requisite amount in controversy, appearing to argue that 

the amount in controversy is apparent from the supporting exhibits:

Looking at the facts of this case, it is clear the amount in controversy 

at the time of removal exceeded the $75,000 jurisdictional threshold. 

Plaintiff made pre-removal settlement demands of $750,000 and 

$250,000. These demands far exceed the jurisdictional limit provided 

in § 1332. Plaintiff supported these demands with specific allegations 

of medical expenses and lost wages totaling $348,146, well above the 

jurisdictional limit. 

Doc. 11 at 6, ¶1 (internal citations omitted). Defendant notes that post removal 

stipulations cannot divest the court of jurisdiction. Poore v. Am.-Amicable Life Ins. 

Co. of Texas, 218 F. 3d 1287, 1291 (11th Cir. 2000). The Eleventh Circuit stated 

that, “events occurring after removal which may reduce the damages recoverable 

below the amount in controversy requirement do not oust the district court's 

jurisdiction.” Id. In the case at hand, the Plaintiff’s stipulation regarding the 

amount in controversy is an example of an “event[ ] occurring after removal”. See id. 

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Considering the evidence of the amount in the pre-removal demands, 

Plaintiff’s stipulation is not a valid assertion of the amount in controversy. 3 

Instead, it is an attempt to persuade the court to remand based on new facts. In 

assessing whether it has subject matter jurisdiction over a case removed after 

service of the initial complaint, this Court must determine whether subject matter 

jurisdiction existed at the time of the removal. See, e.g., Pretka v. Kolter City Plaza 

II, Inc., 608 F. 3d 744, 751 (11th Cir. 2010); Poore, 218 F. 3d 1287, 1290–91 (11th 

Cir. 2000); Sierminski v. Transouth Fin. Corp., 216 F. 3d 945, 949 (11th Cir. 2000) 

(jurisdictional facts that support removal must be judged at the time of the removal, 

and any post-petition affidavits are allowable only if relevant to that period of time)

(emphasis added); Moss, 43 F. Supp. 2d at 1303. There is nothing in Plaintiff’s 

Motion to Remand that relates the stipulation back to a time at or before the notice 

of removal. See Docs. 7, 13. Conversely, Defendant has offered evidence suggesting 

that the amount in controversy exceeded the statutory limit. Doc. 11-1 at 5; Doc. 

11-2 at 2. The demand letters sent to the Defendant by Plaintiff prior to the filing of 

the claim suggest an amount in controversy far exceeding $75,000. Id. These 

demands are, furthermore, supported by the Plaintiff’s own calculations, including a

combination of medical bills and lost wages that totaled in excess of $345,000. Doc. 

11-1 at 5. This evidence is enough to prove, beyond a preponderance, that damages 

exceed the jurisdictional limit. See Roe, 613 F.3d at 1061-62 (citations omitted).

 3 The Court notes that this is a proper post-removal stipulation that would give cause to remand if 

there was no evidence of pre-removal demand. Moss v. Voyager Ins. Companies, 43 F. Supp. 2d 1298, 

1303 (M.D. Ala. 1999)(A binding stipulation on the amount plaintiff will accept, is enough to divest 

the court of jurisdiction, when only evidence offered by defendant was jury verdicts from similar 

cases).

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That said, it is not true that “post-removal facts must never be considered in 

evaluating removal jurisdiction. Rather, the law is clear that post-removal 

developments are properly weighed where they shed light on the amount in 

controversy at the time of removal.” Land Clearing Co., LLC v. Navistar, Inc., Civil 

Action No. 11–0645–WS–M, 2012 WL 206171, at *3 (S.D. Ala. Jan. 24, 2012) 

(Steele, J.) (emphasis in original) (citing Pretka, 608 F.3d at 772–73; and Sierminski 

v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000)). Accord Davison, 2013 

WL 4012654, at *3. 

“[W]hat is prohibited are post-removal changes in the amount in 

controversy, not post-removal clarifications of the amount that was in 

controversy at the moment of removal.” Jackson v. Select Portfolio 

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

plaintiff comes forward after removal and clarifies (as opposed to 

altering) facts bearing on the amount in controversy, courts in this 

Circuit routinely accept such evidence in determining whether § 1332 

jurisdiction existed at the moment of removal.

Land Clearing, 2012 WL 206171, at *3.

Plaintiff’s stipulation directly contradicts the amounts demanded by Plaintiff 

prior to removal. This stipulation appears to amount to more than a post-removal 

clarification. Under these circumstances, Defendant has met its burden in proving,

beyond a preponderance of the evidence, that the amount in controversy 

requirement is met.

III. Conclusion

For the foregoing reasons, it is the recommendation of the undersigned that 

removal was proper and federal subject-matter jurisdiction properly lies pursuant to 

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28 U.S.C. § 1332. Accordingly, it is recommended that Plaintiff’s Motion for Remand 

(Docs. 7, 13) be DENIED.

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. L.R. 72.4. 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 

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. 

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DONE this the 29th day of May 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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