Snow v. Mike Bloomberg 2020 Inc.

543 F.Supp.3d 419

Gregory SNOW, Plaintiff,

v.MIKE BLOOMBERG 2020 INC., Defendant.

Civil Action No. 4:20-cv-00490-P

United States District Court, N.D. Texas, Fort Worth Division.

Signed July 22, 2020

Jason C.N. Smith, Law Offices of Jason Smith, Fort Worth, TX, for Plaintiff.

Greg W. Curry, Dina McKenney, Jennifer Meghan Nylin McCaig, Thompson & Knight LLP, Dallas, TX, for Defendant.

AMENDED ORDER ¹

Mark T. Pittman, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Gregory Snow's ("Snow") Motion to Remand (ECF No. 12), Defendant Mike Bloomberg 2020 Inc.’s ("Bloomberg") Response (ECF No. 15), and Snow's Reply (ECF No. 16). It is only with great hesitancy and consternation, after having considered the Motion to Remand, related briefing, and the relevant applicable law, that the Court determines finds that the Motion to Remand should be and is hereby DENIED .

BACKGROUND

A. Pre-Removal Events in State Court

This is a relatively small employment dispute that was initiated in a Tarrant County, Texas county court at law² by Snow on March 23, 2020 against Bloomberg, a Delaware corporation with a principal place of business in New York. Snow alleges claims for breach of contract, fraud, promissory estoppel, and unjust enrichment. See Orig. Pet., ECF No. 1-2. Snow alleged that as a result of Bloomberg's actions, he "has suffered in the past, and in all reasonable likelihood, will suffer in the future, damages including, lost wages, lost earning capacity, mental anguish, emotional pain and suffering, lost employment benefits, inconvenience, loss of enjoyment of life, damage to professional reputation, and other damages." Id. at 3. Snow contended that Bloomberg promised to pay Snow $6,000 per month through the election, plus provide employment benefits such as paid leave and health insurance. Id. at 2. In his Original Petition, Snow sought "only monetary relief of $75,000 or less including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees." Id.

Snow subsequently filed an amended petition nearly identical to his Original Petition, with the only difference being that the Amended Petition included service of process to Bloomberg's registered agent. See First Am. Pet., ECF No. 1-4. In his Amended Petition, Snow repeated the same language contained in his Original Petition that the recovery he was seeking did not exceed $75,000. Id. at 3.

B. Notice of Removal

After Snow filed his Amended Petition, Bloomberg filed a notice removing the action to this Court, asserting this Court has diversity jurisdiction. See Removal at 1, ECF No. 1. In its Notice of Removal, Bloomberg argued that Snow's Amended Petition seeking "$75,000 or less," contravenes Texas pleading requirements. Id. at 3. For that reason, Snow's Amended Petition is not in good faith, and the sum claimed in his Amended Petition should not control. Id. In support of Bloomberg's contention that the amount in controversy actually exceeds the required jurisdictional amount, Bloomberg offered a declaration by Jennifer McCaig, Bloomberg's counsel, concerning attorney's fees and similar lawsuits against Bloomberg. See Declaration of J. McCaig, ECF No. 1-9. In that declaration, as evidence regarding Snow's attorney's fees, McCaig testified about Snow's demand letter, which represented that Snow had already incurred approximately $10,000 in attorney's fees. Id. at Ex. 3. McCaig also included another employment dispute involving Snow's counsel where the Northern District of Texas awarded Snow's counsel $154,200 in attorney's fees and conditional fees, with Snow's counsel's hourly rate at $500 per hour. Id. at Ex. 1. McCaig also offered evidence that in a similar lawsuit against Bloomberg also pending in this Court, eight plaintiffs seek "monetary relief of over $1,000,000." Id. at Ex. 4 at 2.³

C. Motion to Remand

Shortly after removal, Snow filed his Motion to Remand, supporting brief and supporting index. See ECF No. 12-14. Snow argues in his Motion to Remand that he has so limited his damage claims on the face of his Amended Petition, even when considered in the context of Bloomberg's declaration concerning attorney's fees and similar lawsuits against Bloomberg, does not provide the evidence it would need for Bloomberg to carry its burden of proving that the amount in controversy exceeds the jurisdictional amount. See Motion to Remand Brief, ECF No. 13. In Snow's Motion to Remand, Snow relies primarily on Steele v. DynCorp Int'l L.L.C. , 82 F. Supp. 3d 699 (N.D. Tex. 2015) (McBryde, J), in which the court held that an amended petition limiting damages to $75,000 or less, coupled with a post-removal declaration, was sufficient to sustain a motion to remand. Id. at 6. In addition, Snow contends that Bloomberg has failed to establish that Snow's claims exceed $75,000 because Bloomberg provided no facts or affidavits supporting its Notice of Removal. Id.

Snow's Motion to Remand also included a sworn declaration from Snow, in which he indicated that he was seeking only lost wages and compensatory damages, and that he irrevocably limits his recovery of damages for the harms and losses to $75,000 as set forth in his Amended Petition. See Snow Remand App'x 5–6, ECF No. 14. Snow also included in his supporting index a similar employment lawsuit filed in the 134th Judicial District Court of Dallas County, Texas, Benavides v. Macy's Inc. , in which Snow's counsel explicitly limited damages and attorney's fees to $75,000 or less at trial. Id. at 8–23. Snow argues that this demonstrates his counsel's good faith in seeking $75,000 or less. See Remand Brief at 6, ECF No. 13.

D. Bloomberg's Response

On July 1, 2020, Bloomberg filed its response addressing Snow's arguments in his Motion to Remand. See Response, ECF No. 15. Bloomberg argues that the Court is not bound by Snow's Amended Petition because "[p]laintiffs attempt to deprive federal courts of jurisdiction by pleading that he seeks no more than $75,000 was, according to the Fifth Circuit, not in good faith, was not accompanied in the state court by a binding stipulation to that effect, and is not supported by the Texas Rules of Civil Procedure...." Id. at 6.

Regarding Snow's alleged evidence of good faith in Benavides , Bloomberg argues that Benavides does not hurt its case, but in fact, further bolsters its argument that the amount in controversy exceeds $75,000 because, in that case, the plaintiff recovered $25,000 in damages for mental anguish, loss of enjoyment, and inconvenience; $10,000 in lost earning capacity in the future; and $31,300 in attorney's fees through trial. Id. at 11. Bloomberg contends that "[a]ssuming similar damages in this case, plus the lost wages Plaintiff seeks, the amount in controversy would be $108,300 ($42,000 in lost wages; $25,000 in mental anguish; $10,000 in lost earning capacity; and $31,300 in attorney's fees through trial)." Id. at 12.

Regarding Snow's declaration, Bloomberg argues that the Court may not consider Snow's declaration in determining the amount in controversy because the declaration was filed post removal. Id. at 7. Although the court in Steele considered a post-removal affidavit, Bloomberg argues that the Court here should follow the Fifth Circuit instructions that a declaration must be filed in the state court to avoid removal. Id. at 6.

Bloomberg further argues that even if the Court could consider Snow's declaration, it does not unequivocally limit Snow's recovery to $75,000 or less because "[i]f the Court remanded the case and Plaintiff filed a second amended petition—as he is permitted to do in state court—the declaration would not apply, given Plaintiff's statement tying his damages limitation to the damages ‘set forth in [his] First Amended Petition.’ " Id. at 9.

E. Snow's Reply

On July 7, 2020, Snow filed a Reply to Bloomberg's Response, addressing Bloomberg's arguments supporting diversity jurisdiction. See Reply, ECF No. 16. In his Reply, Snow asserts that (1) Texas law allows a party to plead for $75,000 or less; (2) Bloomberg has failed to carry its burden that the amount in controversy exceeds $75,000; and (3) Snow's sworn declaration limiting damages to $75,000 unequivocally limits to a legal certainty that Snow will not recover any amount above the jurisdictional threshold. Id. at 1.

Regarding the pleading requirements of Texas Rule of Civil Procedure 47, Snow argues that " Rule 47 has been held to not limit a plaintiff's ability to specify damages in the amount of $75,000." Id. at 2. In support of this contention, Snow relies on the holding in Morales v. Allstate Tex. Lloyds , in which the court held that "the plain language of the amended Rule 47 does not prohibit a plaintiff from specifying a certain amount in damages." 410 F. Supp. 3d 816, 821 (S.D. Tex. 2019). Next, Snow argues that "[w]hile Bloomberg offers evidence of awards in other cases, it fails to offer evidence regarding Snow's damages, which is its burden on its motion to remand." See Reply at 2. Regarding his post-removal declaration, Snow contends that this declaration may be considered to determine the amount in controversy since the basis for jurisdiction is ambiguous. Id. at 4.

SUBJECT-MATTER JURISDICTION

Under Title 28 U.S.C. 1332(a), federal district courts have original jurisdiction of all civil actions involving citizens of different states, where the matter in controversy exceeds $75,000, exclusive of interest and costs. And § 1441(a) provides that:

any 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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Id. at § 1441(a). "[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc. , 200 F.3d 335, 339 (5th Cir. 2000). When assessing the amount in controversy...