Opinion
Case Number 03-10237-BC
March 15, 2004
OPINION AND ORDER GRANTING THE PLAINTIFF'S MOTION TO REMAND
The plaintiff filed a complaint in the above-entitled action in the Midland Circuit Court on August 19, 2003 alleging that the defendants breached: (1) a purchase agreement relating to the parties' medical practices, (2) an employment relationship, (3) a lease agreement, and (2) a fiduciary duty. The plaintiff further alleged that the defendants converted his patients' records, intentionally interfered with a business relationship, engaged in a civil conspiracy, and were unjustly enriched at his expense. On September 29, 2003, the defendants filed a notice of removal, invoking only this Court's diversity jurisdiction under 28 U.S.C. § 1332. On October 31, 2003, the Court ordered the defendants to show cause why the matter should not be remanded to Midland Circuit Court for want of federal jurisdiction.
Meanwhile, the plaintiff filed a timely motion to remand based upon the same grounds identified by the Court in the show cause order. The plaintiff also sought attorney's fees and costs under 28 U.S.C. § 1447(c).
The defendants responded to the Court's order to show cause. Specifically, the defendants admitted that they are all citizens of Michigan and were citizens of the State of Michigan at the time of filing and serving the notice of removal. The defendants argued, however, that the plaintiff was not a citizen of Michigan at the time the action was filed because he was in the process of moving out of his residence in Michigan with the intention to permanently move to Florida. Even though the plaintiff still holds a Michigan driver's license, registers his automobile here, and owns a home in Michigan, the totality of evidence and the plaintiff's conduct demonstrates that it was his intent at the time this lawsuit was filed to become a resident of Florida, according to the defendants.
Removal jurisdiction is prescribed by 28 U.S.C. § 1441, which states in relevant part:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.28 U.S.C. § 1441(b) (emphasis added).
The statute plainly restricts the removal right of a defendant, relying solely upon diversity jurisdiction, to those cases in which the defendant is not a resident of the state in which the federal court is located. See Plastics Moldings Corp. V. Park Sherman Co., 606 F.2d 117, 119 (6th Cir. 1979) (holding that action was not properly removable under 28 U.S.C. § 1441(b) on diversity grounds because the removing defendant was a resident of the state in which the action was brought).
It appears from the Notice of Removal that the defendants' removal effort runs afoul of the proscription stated in 28 U.S.C. § 1441(b), noted above, since the defendants predicate federal jurisdiction solely on diversity of citizenship, and the defendants admit that they are citizens of Michigan. The plaintiff has also moved to remand based upon these grounds.
Removal of this action is also inappropriate because the defendants failed to show the Court that complete diversity exists under 28 U.S.C. § 1332. Title 28, Section 1441 of the United States Code requires defendants seeking removal to demonstrate that a district court would have original jurisdiction over a civil action in order to invoke the court's removal jurisdiction. Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000); Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989). A federal district court has original "diversity" jurisdiction if the action involves citizens of different states and the amount in controversy exceeds $75,000 exclusive of costs and interest. 28 U.S.C. § 1332(a). The Notice of Removal and the defendants' answer to the Court's Show Cause Order does not adequately demonstrate that the amount in controversy exceeds $75,000.
The amount in controversy is assessed as of the time the complaint is filed, Rosen v. Chrysler Corp., 205 F.3d 918, 920-21 (6th Cir. 2000), or in the case of removal, at the time of the removal notice. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). Generally, the amount claimed by the plaintiff in his or her complaint determines whether the jurisdictional amount is satisfied. Rosen, 205 F.3d at 920-21. Here, the plaintiff alleges only that the amount in controversy exceeds $25,000. The Sixth Circuit places the "burden on a defendant seeking to remove an action to federal court to show by a preponderance of the evidence that the amount in controversy requirement has been met." Hayes v. Equitable Energy Resources, Co., 266 F.3d 560, 572 (6th Cir 2001) (citing Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993)). This standard "does not place upon the defendant the daunting burden of proving, to a legal certainty, that the plaintiff's damages are not less than the amount-in-controversy requirement. Such a burden might well require the defendant to research, state and prove the plaintiff's claim for damages." Gafford, 997 F.2d at 158. On the other hand, defendants seeking removal must show that it is more likely than not that the plaintiff is seeking damages in excess of the $75,000 limit. Hayes, 266 F.3d at 572.
The Court does not rule out the possibility that the plaintiff's claim could in fact be worth more than $75,000. However, the removal petition must state facts, not mere conclusions, that enable the Court to determine that the jurisdictional requirements have been satisfied. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir. 2001). Based on the papers before the Court, no such showing has been made by the defendants in this case.
Accordingly, the defendants have not identified a valid basis for removal, and the Court will remand this matter to state court.
The Court also finds that an award of attorney's fees is appropriate pursuant to 28 U.S.C. § 1447(c), which provides:
If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. . . .8 U.S.C.A. § 1447(c). A party requesting fees under this provision is not required to show improper purpose or bad faith on the non-moving party's part to recover attorney's fees. Morris v. Bridgestone/Firestone Inc., 985 F.2d 238, 240 (6th Cir. 1993).
Here, the plaintiff contends that the defendants had no defensible reason to attempt removal, and that counsel's actions were devoid of any fair support based upon the plain language of the complaint and the removal statute.
However, the plaintiff has not provided any evidence of the appropriate amount of attorney's fees to be awarded in this matter. If the plaintiff persists in his fee request, then the plaintiff shall provide the Court with an affidavit in support of the request on or before March 19, 2004. See Mehney-Egan v. Mendoza, 130 F. Supp.2d 884 (E.D. Mich. 2001).
Accordingly, it is ORDERED that the plaintiff's motion to remand [dkt #12] this matter to state court is GRANTED.
It is further ORDERED that this case is REMANDED to the Midland County, Michigan Circuit Court.
It is further ORDERED that the plaintiff's request for attorney's fees and expenses under 28 U.S.C. § 1447(c) is deferred pending further submissions, which shall be furnished on or before March 22, 2004. The defendants then shall have until March 29, 2004 to file a response to the plaintiff's supplemental materials if any are filed. The failure of the plaintiff to submit a timely affidavit will be deemed an abandonment of the request for attorney's fees under § 1447(c).