Casey v. Nestle Prepared Foods Co.

WESTERN RICKY CASEY, Plaintiff, v. NESTLE PREPARED FOODS COMPANY, et al., Defendants.

Civil Action No. 5: 13-160-DCR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION (at Lexington)

Dated: October 1, 2013

MEMORANDUM OPINIONAND ORDER

This matter is pending for consideration of Plaintiff Western Ricky Casey's motion to remand. [Record No. 9] Casey argues that the Court lacks subject matter jurisdiction because the amount in controversy does not exceed $75,000.00, exclusive of interest and costs, and because there is not complete diversity between the parties. Defendants Nestle Prepared Foods Company ('Nestle") and Scott Luvin have also filed a motion for reconsideration. [Record No. 5] For the reasons discussed below, both motions will be denied.

I.

Casey was previously employed by Nestle at its facility in Mt. Sterling, Kentucky, until he was terminated, on March 13, 2012. [Record No. 1-22, p. 3 ¶9] Casey filed his Complaint against Nestle in the Montgomery Circuit Court on September 12, 2012, alleging that the company violated Kentucky Revised Statute § 342.197 by wrongfully terminatinghim in retaliation for his pursuit of two workers' compensation claims. [Record No. 1-2] On March 19, 2013, the state court granted Casey leave to file an Amended Complaint, which added a second claim for common law wrongful discharge. [Record No. 1-13] Both the Complaint and the Amended Complaint stated that the amount sought not exceed $75,000.00. [Record No. 8]

On May 10, 2013, Casey was granted leave to file a Second Amended Complaint, which alleged claims of defamation and libel and slander against Nestle and Luvin, individually and as an employee of Nestle. [Record No. 1-22] The Second Amended Complaint also added a claim for punitive damages. However, the Second Amended Complaint did not contain the limiting language stating that the amount sought does not exceed $75,000.00. Although this language was included in Paragraph 17 of the proposed Second Amended Complaint that Casey filed as an attachment to his Motion to Amend Complaint, it was not included in the final version filed with the Court. [Record No. 1, p. 3 n.3]

Based on the allegations contained in the Second Amended Complaint, the defendants filed a Notice of Removal on May 30, 2013, invoking the Court's diversity jurisdiction under 28 U.S.C. § 1332. Casey seeks remand, arguing that this Court lacks jurisdiction because the amount in controversy is less than $75,000.00, exclusive of interest and costs, and because there is not complete diversity between the parties.

II.

Title 28 of the United States Code, Section 1332, provides that federal district courts have original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). The statute "has been interpreted to demand complete diversity, that is, that no party share citizenship with any opposing party." Caudill v. N. Am. Media Corp., 200 F.3d 914, 916 (6th Cir. 2000). For purposes of diversity jurisdiction, citizenship is based on a party's domicile, not his or her residence. Farmer v. Fisher, 386 F. App'x 554, 557 (6th Cir. 2010). The two terms are "'not necessarily synonymous'"; a person "'can reside in one place but be domiciled in another.'" Id. (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)).

Additionally, before a defendant may properly remove a case to federal court based upon diversity jurisdiction, there must be complete diversity of citizenship both at the time that the case is commenced and at the time that the notice of removal is filed. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) (citing Easley v. Pettibone Mich. Corp., 990 F.2d 905, 908 (6th Cir. 1993)); see also Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). In interest of comity and federalism, federal jurisdiction should be exercised only when it is clearly established, and any ambiguity regarding scope of removal statute should be resolved in favor of remand to state courts. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999).

Finally, the party seeking to invoke diversity jurisdiction bears the burden of proving that complete diversity existed at the time of removal. Certain Interested Underwriters v.Layne, 26 F.3d 39, 41 (6th Cir. 1994). "On a challenge to allegations of jurisdictional facts, that party must support those allegations by competent proof." 15 Moore's Federal Practice, § 102.14 (Matthew Bender 3d ed.); see also United Food Local 919 v. Centermark Props., 30 F.3d 298, 301 (2d Cir. 1994).

III.

A. The Amount in Controversy

Casey argues that the Court lacks jurisdiction because the amount in controversy is less than $75,000.00, exclusive of interest and costs. The defendants respond that they have satisfied their burden on this issue because the allegations in the Second Amended Complaint show that the amount in controversy exceeds $75,000.00. When a plaintiff fails to specifically plead an amount he seeks, the removing defendants must show that it is more likely than not that the amount in controversy exceeds the jurisdictional amount, based on the plaintiff's complaint at the time the notice of removal is filed. Klepper v. First Am. Bank, 916 F.2d 337, 340 (6th Cir. 1990); Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993). To determine the amount in controversy, the Court first looks to the complaint at the time of removal. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 573 (6th Cir. 2001). The minimum amount in controversy is met if a "fair reading" of the complaint renders it more likely than not that the amount in controversy exceeds the jurisdictional amount. See id.

Although the defendants emphasize that the limiting language on damages was omitted from the Second Amended Complaint,¹ the issue presented is whether the asserted claims provide an amount in controversy exceeding $75,000.00. See Ratliff v. Merck SC Corp., 359 F. Supp. 2d 571, 575 (E.D. Ky. 2005). Casey's Second Amended Complaint does not specifically state the amount Casey seeks. However, the allegations and attached filings demonstrate that, more likely than not, the amount in controversy exceeds $75,000.00. For instance, Casey alleges that he is entitled to an award of back pay, front pay, and damages for psychological pain and suffering and his other benefits of employment for his wrongful discharge claims. [Record No. 1-22, p. 4 ¶15] He also seeks punitive damages against each defendant based on his defamation claims. [Id., p. 6 ¶28]

Nestle argues that, based on the plaintiff's hourly wage at the time of termination "and considering his March 2012 termination date, [Casey] could recover, at a minimum, $72,800 in back pay alone[] by the time that this dispute goes to trial." [Record No. 11, p. 6] At the time of his discharge, Casey had an hourly wage of $14.00/hour as a full-time employee working 40 hours per week. Although Casey contests this calculation, the Court notes that a September 2014 trial date is a reasonable assumption. In addition, Casey correctly notes that he is required to mitigate his damages, which could limit his recovery. Moreover, there are potential reductions to an award of back pay, such as "unemployment benefits, otherwork performed, or any [workers compensation] benefits that were paid for lost wages during this time." [Record No. 8, pp. 3-4]

Casey's Second Amended Complaint does not specify an exact amount of damages, presumably because the Kentucky Rules of Civil Procedure prevent a plaintiff from including such an itemization in his Complaint. See Ky. R. Civ. P. 8.01(2)("[T]he prayer for damages in any pleading shall not recite any sum as alleged damages other than an allegation that damages are in excess of any minimum dollar amount necessary to establish jurisdiction of the court.") Additionally, the defendants note that Casey has requested front pay, compensatory damages for emotional distress, and punitive damages. Hayes, 266 F.3d at 572 (punitive damages should be included in calculating the amount in controversy, unless it is apparent "to a legal certainty" that they cannot be recovered); see also Klepper v. First Am. Bank, 916 F.2d 337, 341 (6th Cir. 1990).

Casey's post-removal statements regarding the amount in controversy do not change the allegations of the Second Amended Complaint. For example, the affidavit attached to the Motion to Remand contends "[t]hat [Casey does] not intent to ask for damages in excess of $75,000." [Record No. 8-1, p. 1] However, this statement does not mean that Casey cannot recover an amount in excess of that sum. See Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871-72 (6th Cir. 2000) (stating that because the propriety of remand depends on the case at the time of removal, a plaintiff cannot defeat federal jurisdiction by agreeing to seek less than the federal jurisdictional amount after removal). In addition, a "post-removal stipulation reducing the amount in controversy to below the jurisdictional limit does notrequire remand to state court." Id. And the preponderance of the evidence standard applies even if a plaintiff specifically disclaims damages greater than the federal jurisdiction amount if there is some means by which the plaintiff might nevertheless seek and recover damages greater than $75,000.00. Ratliff, 359 F. Supp. at 575 (E.D. Ky. 2005). Accordingly, this affidavit is of little consequence when considering the amount in controversy in this case.

Casey also attaches his initial demand letter as evidence that he asked for only $30,000.00 from Nestle to settle his claims. [Record No. 8-2] He contends that, "[i]t is doubtful that [the plaintiff] would authorize a $30,000.00 initial demand if his intention was to seek more than $75,000.00." [Record No. 8, p. 4] However, as the defendants correctly point out, even though a settlement demand is "some...