[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 5, 2010
No. 09-15141 JOHN LEY
________________________ CLERK
D. C. Docket No. 08-00837-CV-MHT-CAS
DONALD B. ROE,
Personal Representative of the
Estate of Socorro Mejia, deceased,
Plaintiff-Appellant,
versus
MICHELIN NORTH AMERICA, INC.,
MICHELIN AMERICAS RESEARCH & DEVELOPMENT
CORPORATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 5, 2010)
Before BLACK, HULL and KRAVITCH, Circuit Judges.
BLACK, Circuit Judge:
Plaintiff-Appellant Donald Roe, representing the estate of Socorro Mejia,
sued Michelin North America, Inc. and Michelin Americas Research and
Development Corp. (together, Michelin). Roe sought to recover unspecified
damages under Alabama’s Wrongful Death Act. Michelin, invoking diversity
jurisdiction under 28 U.S.C. § 1332, removed the case to federal court pursuant to
§ 1441 and the first paragraph of § 1446(b). Roe moved to remand, claiming
Michelin failed to prove by a preponderance of the evidence that the amount in
controversy exceeded $75,000. The district court denied Roe’s motion, finding
the complaint sufficiently showed that the jurisdictional requirement was satisfied.
Roe appeals the order.
The parties dispute whether a defendant can carry its jurisdictional burden
by relying merely on the nature of the plaintiff’s allegations, when only punitive
damages are available and the plaintiff does not specify his monetary expectations.
We conclude Michelin has carried its jurisdictional burden in this case and affirm
the district court.
I. BACKGROUND
Socorro Mejia, the decedent, was a passenger in a Ford Explorer when the
tread on the vehicle’s Michelin tire separated and caused the Explorer to lose
control. The vehicle rolled over, and both Mejia and the driver were killed. Roe,
2
as the representative of Mejia’s estate, sued Michelin claiming the company was
negligent and wanton in designing, developing, and selling a tire that had a
tendency to fail under foreseeable driving conditions. Roe sought to recover
damages under Alabama’s Wrongful Death Act, a statute that allows plaintiffs to
recover punitive, but not compensatory, damages. See Campbell v. Williams, 638
So. 2d 804, 809 (Ala. 1994) (citing Ala. Great S. R.R. v. Burgess, 22 So. 913 (Ala.
1987)). The complaint does not specify the amount of punitive damages Roe
seeks, but merely prays “for damages allowed under Alabama’s Wrongful Death
Act, in an amount to be determined by a jury.”
Prior to discovery, Michelin removed the case to federal district court. Its
notice of removal stated the parties were diverse and that, although Roe did “not
state a specific amount of damages sought,” it was facially apparent from the
complaint that the case met the $75,000 amount-in-controversy requirement. Roe
did not deny that the amount in controversy exceeded $75,000 but nevertheless
moved to remand, claiming Michelin failed to prove by a preponderance of the
evidence that more than $75,000 was at issue. Michelin opposed the motion,
asserting that the nature of Roe’s allegations alone was sufficient to show that the
jurisdictional amount in controversy was satisfied. The district court found that
3
Michelin had met its burden and denied Roe’s motion to remand. Roe now
challenges that denial on appeal.1
II. DISCUSSION
A. Removal
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).2 The defendant’s notice of removal must contain “a short and
plain statement of the grounds for removal,” and must be “signed pursuant to Rule
11 of the Federal Rules of Civil Procedure.” § 1446(a).
1
The Alabama Association for Justice filed an amicus brief in support of Roe, and The
Alabama Defense Lawyers Association filed one in support of Michelin.
2
If a defendant relies on the complaint itself to establish the federal jurisdictional
requirements, the removal is governed by the first paragraph of § 1446(b), which provides:
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 initial pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
Conversely, if removability is not apparent from the initial pleading, but is later
ascertainable that the case “is or has become removable,” removal is governed by the second
paragraph of § 1446(b). That paragraph states:
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 an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable . . . .
Because Michelin relies on Roe’s initial complaint as the basis for its removal, this case
is governed by the first paragraph of § 1446(b).
4
Michelin’s notice of removal states that it is facially apparent from Roe’s
complaint that the case, more likely than not, exceeds the $75,000 amount-in-
controversy requirement. Roe argues it is not for the district court to determine
whether the claim likely exceeds $75,000, if the plaintiff has not explicitly stated
the amount of damages he seeks.3
1. Eleventh Circuit Precedent
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.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir.
1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069
(11th Cir. 2000). In some cases, this burden requires the removing defendant to
provide additional evidence demonstrating that removal is proper.4 See, e.g.,
3
Plaintiff’s arguments are grounded primarily in misapplied dicta from Lowery v.
Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007). This case and the case in Lowery were
removed under different paragraphs of § 1446(b). “While some of the language [of Lowery]
sweeps more broadly, it is dicta insofar as a § 1446(b) first paragraph case, like this one, is
concerned.” Pretka v. Kolter City Plaza II, Inc.,608 F.3d 744, 747 (11th Cir. 2010).
4
In § 1446(b) first-paragraph cases, the removing defendant may present additional
evidence—business records and affidavits, for instance—to satisfy its jurisdictional burden. See
Pretka, 608 F.3d at 753–54. In addition to first-paragraph cases like Pretka, § 1446(b) permits
the removal of two other types of cases, both of which are governed by the statute’s second
paragraph. The first type of second-paragraph case (Type 1) is one that initially could have been
removed had the parties possessed the relevant jurisdictional information, but, because the
removability was not initially ascertainable, the defendant could not carry its jurisdictional
burden until a later time. The second type of second-paragraph case (Type 2) is one that
5
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir. 2010). In other cases,
however, it may be “facially apparent” from the pleading itself that the amount in
controversy exceeds the jurisdictional minimum, even when “the complaint does
not claim a specific amount of damages.” See id. at 754 (quoting Williams v. Best
Buy Co., Inc., 269 F.3d 1316,1319 (11th Cir. 2001)).
If a defendant alleges that removability is apparent from the face of the
complaint, the district court must evaluate whether the complaint itself satisfies
the defendant’s jurisdictional burden. In making this determination, the district
court is not bound by the plaintiff’s representations regarding its claim, nor must it
assume that the plaintiff is in the best position to evaluate the amount of damages
sought. Id. at 771. Indeed, in some cases, the defendant or the court itself may be
better-situated to accurately assess the amount in controversy. See id. (explaining
that “sometimes the defendant’s evidence on the value of the claims will be even
originally could not have been removed because it initially did not satisfy federal jurisdictional
requirements, but that later becomes removable because the nature of the dispute changes. Thus,
whereas Type 1 cases have always been removable but the removability was not initially
ascertainable, Type 2 cases shift from nonremovable to removable in nature.
This opinion considers removal only under the first paragraph of § 1446(b); it does not
address the effect of Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), on second-
paragraph cases. Specifically, we do not decide whether or under what circumstances the second
paragraph permits a defendant to present additional evidence to establish removability. We note
only that this Court has explained, “[W]e do not believe that Congress, when it enacted § 1446,
altered the traditional understanding that defendants could offer their own affidavits or other
evidence to establish federal removal jurisdiction.” See Pretka, 608 F.3d at 759.
6
better than the plaintiff’s evidence,” and that a court may use its judgment to
determine “which party has better access to the relevant information.”).
Eleventh Circuit precedent permits district courts to make “reasonable
deductions, reasonable inferences, or other reasonable extrapolations” from the
pleadings to determine whether it is facially apparent that a case is removable. See
id. at 754. Put simply, a district court need not “suspend reality or shelve common
sense in determining whether the face of a complaint . . . establishes the
jurisdictional amount.” See id. at 770 (quoting Roe v. Michelin N. Am., Inc., 637
F.Supp. 2d 995, 999 (M.D. Ala. 2009)); see also Williams, 269 F.3d at 1319 (11th
Cir. 2001) (allowing district courts to consider whether it is “facially apparent”
from a complaint that the amount in controversy is met). Instead, courts may use
their judicial experience and common sense in determining whether the case stated
7
in a complaint meets federal jurisdictional requirements.5 This approach is
consistent with those of other circuits.
2. Other Circuits’ Removal Precedent
Michelin removed this case pursuant to the first paragraph of § 1446(b).
Because our precedent is relatively sparse in this area, we consider decisions from
other circuits as persuasive authority. In doing so, however, we look only to those
cases that have evaluated the allegations in plaintiffs’ complaints to determine the
value of unspecified amounts in controversy. In other words, we look only to
other § 1446(b) first-paragraph cases in which the plaintiff does not make a
specific damages demand. One circuit in particular, the Fifth Circuit, has often
considered whether removability is “facially apparent” from an initial complaint,
notwithstanding the omission of a specific damage request. The issue arises with
some frequency in the Fifth Circuit, because “plaintiffs in Louisiana state courts,
5
The ability of courts to use their judicial experience and common sense to evaluate the
claims before them is unique neither to our Circuit, nor to this context. For instance, we have
long allowed trial courts to determine whether remittitur is appropriate, based on the trial court’s
judgment of what award would reasonably be supported by a given claim or set of claims. See,
e.g., Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S. Ct. 296, 301 (1935); Frederick v. Kirby
Tankships, Inc., 205 F.3d 1277, 1283 (11th Cir. 2000). In fact, as recently as 2009, the Supreme
Court held a district court must examine a claim’s context and “draw on [the court’s] judicial
experience and common sense,” when evaluating whether a complaint sufficiently pleads a claim
under Federal Rule of Civil Procedure 8(a). See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
We note the jurisdictional pleading requirements for removing a case to federal court under
§ 1446 echo those for filing a complaint in federal court under Rule 8(a). See Ellenburg v.
Spartan Motor Chassis, Inc., 519 F.3d 192, 199 (4th Cir. 2008).
8
by law, may not specify the numerical value of claimed damages.” Gebbia v. Wal-
Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000) (citing LA. CODE CIV. PROC.
art. 893).6
Like the Eleventh Circuit, the Fifth Circuit requires that when the complaint
omits a specific allegation as to the damage amount, “the removing defendant
must prove by a preponderance of the evidence that the amount in controversy is
adequate.” See Felton v. Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir. 2003)
(quotations omitted). The defendant may meet its burden “by establishing that it is
‘facially apparent’ that the claims probably exceed $75,000.” Id.
In Luckett v. Delta Airlines, Inc., for example, the Fifth Circuit held that a
complaint sufficiently established federal diversity jurisdiction in a case removed
from Louisiana state court, despite the lack of a specific damage request. 171 F.3d
295, 298 (5th Cir. 1999). The Fifth Circuit “found [the] complaint’s allegations of
property damage, travel expenses, [an] emergency ambulance trip, six days in the
hospital, pain and suffering, humiliation, and a temporary inability to do
6
Article 893 of the Louisiana Code of Civil Procedure states, in relevant part:
No specific monetary amount of damages shall be included in the allegations
or prayer for relief of any original, amended, or incidental demand. The
prayer for relief shall be for such damages as are reasonable in the premises
except that if a specific amount of damages is necessary to establish the
jurisdiction of the court, the right to a jury trial, the lack of jurisdiction of
federal courts due to insufficiency of damages, or for other purposes, a
general allegation that the claim exceeds or is less than the requisite amount
is required.
9
housework . . . combined to meet the jurisdictional requirement even though no
amount of damages was pled.” Felton, 324 F.3d at 774 (summarizing the holding
in Luckett); Luckett, 171 F.3d at 298 (“Reading the face of the complaint, the
district court did not err in finding that Luckett’s claims exceeded $75,000.”).
Similarly, in Gebbia, the Fifth Circuit held that a complaint lacking a
specified damage request met the amount-in-controversy requirement. The court
explained that the plaintiff’s allegations—that her slip and fall resulted in severe
physical injury, lost wages, lost enjoyment of life, and pain and
suffering—appeared to comprise a claim worth more than $75,000. 233 F.3d at
883 (affirming the district court’s denial of the plaintiff’s motion to remand to
Louisiana state court). Conversely, in Simon v. Wal-Mart Stores, Inc., 193 F.3d
848 (5th Cir. 1999), the Fifth Circuit held, after evaluating the allegations in a
complaint, that “damages comprising only an injured shoulder, bruises, abrasions,
unidentified medical expenses, and a loss of consortium did not meet the amount-
in-controversy requirement.” Felton, 324 F.3d at 774 (summarizing the holding in
Simon); Simon, 193 F.3d at 851–52 (ordering the district court to remand the case
to Louisiana state court, because “it was not ‘facially apparent’ [from the
complaint] that the amount of damages would exceed $75,000”). As these
examples demonstrate, the Fifth Circuit has repeatedly acknowledged the power of
10
district court judges to appraise the worth of plaintiffs’ claims based on the nature
of the allegations stated in their complaints.
The Third Circuit also has recognized the district courts’ authority to
independently appraise the value of pleaded claims. See Angus v. Shiley Inc., 989
F.2d 142 (3d Cir. 1993); see also Frederico v. Home Depot, 507 F.3d 188 (3d Cir.
2007). In Angus, for example, the Third Circuit evaluated the amount in
controversy in a case where the complaint prayed for, at minimum, $40,000.
Angus, 989 F.2d at 154. The Third Circuit explained that a district court does not
measure the amount in controversy by a plaintiff’s statement of his minimal
damage expectations, but rather by “a reasonable reading of the value of the rights
being litigated.” Id. at 146. The court concluded that, “given that the complaint
[did] not limit its request for damages to a precise monetary amount, the district
court properly made an independent appraisal of the value of the claim.” Id. at
146 (footnote omitted).
We have found no case in any other circuit that purports to prohibit a district
court from employing its judicial experience or common sense in discerning
whether the allegations in a complaint facially establish the jurisdictionally
required amount in controversy. The Fifth and Third Circuits’ recognition of a
11
district courts’ authority to determine the reasonable value of a claim comports
with our precedent and our holding in this case.
3. Protecting the Right to Remove
This common-sense approach to deciding a jurisdictional challenge is
especially useful in cases brought under Alabama’s Wrongful Death Act, in which
no compensatory damages may be recovered.7 Restricting recovery to only
punitive damages eliminates many of the traditional means available to defendants
to obtain information about the value of claims. For example, an Alabama
Wrongful Death Act award does not reflect the decedent’s wealth, education,
abilities, station in life, or potential for earning. Tillis Trucking Co., Inc. v. Moses,
748 So. 2d. 874, 889 (Ala. 1999) (citing Campbell v. Williams, 638 So. 2d 804,
810–11 (Ala. 1994)). Instead, the factors used to determine the value of the claims
pled by an Alabama Wrongful Death Act plaintiff—factors we discuss
below—can generally be evaluated using the complaint’s allegations regarding the
defendant’s behavior.
Sometimes, when a plaintiff’s allegations are viewed in light of the award
factors, it will be clear that the jurisdictional minimum is likely met. In such
7
The statute creates a cause of action when any “wrongful act, omission, or negligence”
that resulted in the death of a “testator or intestate[,] . . . provided the testator or intestate could
have commenced an action for such wrongful act, omission, or negligence if it had not caused
death.” ALA . CODE § 6-5-410.
12
circumstances, preventing a district judge from acknowledging the value of the
claim, merely because it is unspecified by the plaintiff, would force the court to
abdicate its statutory right to hear the case. This rule would reward plaintiffs for
employing the kinds of manipulative devices against which the Supreme Court has
admonished us to be vigilant. Pretka, 608 F.3d at 766.
For instance, a plaintiff could “defeat federal jurisdiction simply by drafting
his pleadings in a way that did not specify an approximate value of the claims and
thereafter provide the defendant with no details on the value of the claim.” Id.
Plaintiffs skilled in this form of artful pleading could, with this “trick,” simply
“make federal jurisdiction disappear.” See id. Indeed, if courts were to rely solely
on a plaintiff’s damage statements, as Roe suggests, it is difficult to imagine a
punitive damages suit that could be removed against a plaintiff’s wishes.8 Both
policy and precedent counsel against rewarding such obfuscating tactics.
Thus, when a district court can determine, relying on its judicial experience
and common sense, that a claim satisfies the amount-in-controversy requirements,
8
Some have described approaches that prohibit courts from relying on anything other
than a plaintiff’s disclosure of jurisdictional facts as placing “an impenetrable bar on the door
leading to federal jurisdiction.” Jacob R. Karabell, Note, The Implementation of “Balanced
Diversity” Through the Class Action Fairness Act, 84 N.Y.U. L. REV . 300, 321–322 (2009); see
Nicole Ochi, Note, Are Consumer Class and Mass Actions Dead? Complex Litigation Strategies
After CAFA & MMTJA, 41 LOY . L.A. L. REV . 965, 1009 (2008) (describing one such approach as
creating “a nearly insurmountable burden” on defendants to prove the amount in controversy if
the plaintiff chooses not to specify it).
13
it need not give credence to a plaintiff’s representation that the value of the claim
is indeterminate. Otherwise, a defendant could wrongly be denied the removal to
which it is entitled.
B. Roe’s Complaint
District Judge Thompson independently appraised Roe’s claims and
concluded that they likely met the jurisdictional amount in controversy. We
review this determination de novo, applying our own judicial experience and
common sense. See Williams, 269 F.3d at 1318. After carefully considering the
complaint, we agree with Judge Thompson’s conclusion that the value of Roe’s
claims more likely than not exceeds $75,000. Even Roe does not argue that Judge
Thompson’s appraisal of the worth of the claims was inaccurate; rather, Roe
contends only that the district judge lacked the power to engage in that analysis in
the first place. As Part II.A. explains, however, the district court did not overstep
by relying on its judicial experience and common sense to determine whether
Roe’s claims likely exceed $75,000.
To determine whether a complaint sets forth a claim that meets the
jurisdictional minimum—as we must when cases are removed under the first
paragraph of § 1446(b)—we examine the allegations in light of the particular
causes of action chosen by the plaintiff. Here, Roe sued Michelin under
14
Alabama’s Wrongful Death Act. The Act allows the representative of a
decedent’s estate to recover damages from a person or corporation whose
“wrongful act, omission, or negligence” resulted in the death of the decedent,
provided the decedent “could have commenced an action for such wrongful act,
omission, or negligence if it had not caused death.” ALA. CODE § 6-5-410.
The statute’s goal is to prevent death, not to compensate for the loss of
human life, which Alabama believes possesses a value “beyond measure.” See
Campbell, 638 So. 2d at 811. Thus, a Wrongful Death Act plaintiff may recover
only punitive, rather than compensatory, damages. Id. at 809. This limitation,
however, does not mean that plaintiffs’ recoveries must be modest. In fact, the
Wrongful Death Act “attempt[s] to preserve human life by making homicide
expensive.” Id. at 810 (emphasis added) (quoting Louis Pizitz Dry Goods Co. v.
Yeldell, 274 U.S. 112, 115–17, 47 S. Ct. 509, 510 (1927)).
In calculating a damage award, an Alabama Wrongful Death Act jury is
instructed to consider: (1) the finality of death, (2) the propriety of punishing the
defendant, (3) whether the defendant could have prevented the victim’s death, (4)
how difficult it would have been for the defendant to have prevented the death,
and (5) the public’s interest in deterring others from engaging in conduct like the
defendant’s. Tillis Trucking, 748 So. 2d at 889. In assessing punitive damages,
15
the worse the defendant’s conduct was, the greater the damages should be. See
Ala. Power Co. v. Turner, 575 So. 2d 551, 554–55 (Ala. 1991); Alabama Pattern
Jury Instructions: Civil 11A.28 (2d ed.).9
When the value of Roe’s claims are analyzed with judicial experience and
common sense, and in light of the five factors above, they likely exceed the
$75,000 jurisdictional requirement. First, as in all wrongful death cases, the
finality of the victim’s death must be considered. Roe alleges Michelin irreparably
destroyed something that possessed, according to Alabama law, a value beyond
measure: a human life. Second, nothing in the complaint suggests that punishing
Michelin for the injury it caused would be unjust or inappropriate. As to the third
and fourth factors, which pertain to the prevention of Mejia’s death, Roe alleges
Michelin caused Mejia’s death through wantonness, that is “[c]onduct . . . with a
9
The Alabama Wrongful Death Act pattern jury instruction reads:
This is a claim for the wrongful death of (name of decedent).
The damages in this case are punitive and not compensatory. Punitive
damages are awarded to preserve human life, to punish (name of defendant)
for [his/her/its] wrongful conduct, and to deter or discourage (name of
defendant) and others from doing the same or similar wrongs in the future.
The amount of damages must be directly related to (name of
defendant)’s culpability, and by that I mean how bad [his/her] wrongful
conduct was. You do not consider the monetary value of (name of decedent)’s
life because the damages are not to compensate (name of plaintiff) or (name
of decedent)’s family from a monetary standpoint because of [his/her] death.
The amount you award is within your discretion based on the
evidence and the guidelines in this instruction.
16
reckless or conscious disregard of the rights or safety of others.” ALA. CODE 6-11-
20(b)(3). Specifically, Roe alleges Michelin made and sold tires to the public
knowing that they were likely to fail under foreseeable driving conditions. Thus,
Roe suggests both that Michelin might have prevented Mejia’s death if it were
exercising ordinary care and concern for others, and that it did not even attempt to
take such measures. Finally, Roe’s allegations imply that the general public has a
substantial interest in deterring this conduct. Roe alleges Michelin sold the
defective tires nationwide, thereby endangering the lives of thousands of people.
Viewed in light of these factors, judicial experience and common sense
dictate that the value of Roe’s claims (as pled) more likely than not exceeds the
minimum jurisdictional requirement. Thus, the district court did not err in finding
it had subject-matter jurisdiction and denying Roe’s motion to remand the case to
state court.
III. CONCLUSION
Because Roe’s complaint states a case that more likely than not exceeds
$75,000, we affirm the district court’s conclusion that the case was properly
removed.
AFFIRMED.
17