Roe v. Michelin North America, Inc.

[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,

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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

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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.

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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

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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).

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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.

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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

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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

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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).

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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

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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.

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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.

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