Smitherman v. Cloudtrucks, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
RONNIE SMITHERMAN, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 2:23-00465-KD-N
)
CLOUDTRUCKS, LLC, et al., 	)
Defendants. 	)
REPORT & RECOMMENDATIONS
This action is before the Court on two motions filed by Plaintiff Ronnie
Smitherman: a motion to remand (Doc. 6), which has been briefed (see Docs. 7, 10),
and a motion to amend the complaint (Doc. 13).1 Upon consideration and for the
reasons stated herein, the undersigned RECOMMENDS both motions be DENIED.
I. 	Background
Plaintiff Ronnie Smitherman initiated this action in the Circuit Court of Dallas
County, Alabama on January 26, 2023. (Docs. 5, 5-2). The original complaint brought
Alabama 	state 	law 	causes 	of 	action 	for 	negligence/wantonness 	and 	negligent
hiring/training/supervision against Defendant Cloudtrucks, LLC (“Cloudtrucks”)
arising from a motor vehicle accident involving Plaintiff and Dewayne Wooten
(“Wooten”), a Cloudtrucks employee who Plaintiff contends was operating within the
scope of employment at the time of the accident. (Doc. 5-2).2 Plaintiff asserted this
1 The District Judge assigned to this case has referred both motions to the undersigned Magistrate
Judge for appropriate action pursuant to 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72
and S.D. Ala. GenLR 72(a)-(b). (1/26/2024; 2/21/2024 elec. refs.).
2 The initial complaint also named several fictitious defendants, identified merely as others “whose
wrongful conduct, either caused or contributed to cause injuries and damages to the Plaintiff.” (Doc.
5-2, PageID.109).
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accident resulted in “serious injuries,” but did not specify those injuries. (Id.). For
relief, he sought compensatory and punitive damages of an unstated amount,
including but not limited to, future pain and suffering, mental anguish and emotional
distress. (Id.).
Discovery ensued in state court. Cloudtrucks propounded interrogatories and
requests for production, and Plaintiff submitted responses November 10, 2023. (Docs.
5, 5-2). Plaintiff’s discovery responses indicate he incurred $104,528.02 in medical
bills after the accident and that his truck was totaled. (Doc. 5-2, PageID.172-73).
Plaintiff’s insurance paid the medical bills and for the totaled truck. (Id.). The
responses further clarify Plaintiff’s primary injury was a broken sternum, that he
continues to have pain in his neck and back as a result, and that he continues to
attend physical therapy, but does not believe his injuries are permanent. (Id.). The
responses do not discretely address injuries and/or damages related to mental
anguish or emotional distress. (Id.).
On December 8, 2023, Cloudtrucks timely removed the action to this Court on
the basis of diversity jurisdiction, 28 U.S.C. § 1332. See 28 U.S.C. §§ 1441, 1446. (Doc.
1).3 The undersigned ordered an amended notice of removal be filed to adequately
allege the citizenship of Cloudtrucks’ sole member, Tobenna Arodiogbu (Doc. 4), and
an amended notice was timely filed December 15, 2023. (Doc. 5). The amended notice
of removal asserts there is complete diversity among the parties and the that amount
3 Removal of this action on December 8, 2023 is timely based on Plaintiff’s November 10, 2023
discovery responses, which were the first “other paper from which it may... be ascertained that the
case is one which is or has become removable.” 28 U.S.C. §§ 1446(b)(3). See 28 U.S.C. §§ 1446(c)(3)(A).
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in controversy exceeds $75,000. (Id.). Plaintiff now seeks remand of this action to
state court on the basis that the amount in controversy does not exceed the $75,000
jurisdictional minimum. (Doc. 6).
II. 	Legal Standard – Subject Matter Jurisdiction
The subject-matter jurisdiction of federal courts is limited to certain justiciable
“Cases” and “Controversies.” U.S. Const. art. III, § 2. Among them, federal district
courts are statutorily authorized to adjudicate “civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and
is between… citizens of different states.” 28 U.S.C. § 1332(a). Satisfying these
threshold requirements is a necessity for a party seeking to invoke a federal court’s
diversity jurisdiction, because “if a complaint’s factual allegations do not assure the
court it has subject matter jurisdiction, then the court is without power to do anything
in the case.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013). See City
of S. Miami v. Governor of Florida, 65 F.4th 631, 636 (11th Cir. 2023) (“This Court
has ‘an independent obligation to ensure that subject-matter jurisdiction exists before
reaching the merits of a dispute’”); Trump v. United States, 54 F.4th 689, 697 (11th
Cir. 2022) (“Because federal courts lack general jurisdiction, it is presumed that a
cause lies outside of our limited jurisdiction. The burden on establishing the contrary
rests upon the party asserting jurisdiction”) (cleaned up)).
As to citizenship, “[d]iversity jurisdiction requires complete diversity; every
plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th Cir. 1998) (citation omitted). The key fact that must be
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alleged for diversity jurisdiction purposes is citizenship, not residence. Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
With respect to the amount in controversy requirement, it can generally be
satisfied by “claiming a sufficient sum in good faith.” Federated Mut. Ins. Co. v.
McKinnon Motors, 329 F.3d 805, 807 (11th Cir. 2003) (citing St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)). To dismiss a claim for failure to allege
the jurisdictional minimum, “[i]t must appear to a legal certainty that the claim is
really for less…” Id. (citing Red Cab Co., 303 U.S. at 289) (alteration in original).
However, for claims based on indeterminate damages, “the Red Cab Co. ‘legal
certainly’ test gives way, and the party seeking to invoke federal jurisdiction bears
the burden of proving by a preponderance of the evidence that the claim on which it
is basing jurisdiction meets the jurisdictional minimum.” Id. (citations omitted). This
additional requirement is “warranted because there is simply no estimate of damages
to which a court may defer.” Fastcase, Inc. v. Lawriter, LLC, 907 F.3d 1335, 1342
(11th Cir. 2018) (citation omitted).
III. 	Legal Standard – Amended & Supplemental Pleadings
Federal 	Rule 	of 	Civil 	Procedure 	15 	governs 	the 	amendment 	and
supplementation of pleadings in federal court. Under Rule 15(a)(1), parties may
amend a pleading once as a matter of course:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is earlier.
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Fed. R. Civ. P. 15(a)(1)(A)-(B).
In all other cases, amendment is only permitted with the opposing party’s
consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). However, leave to amend should
be given freely “when justice so requires.” Id. See Foman v. Davis, 371 U.S. 178, 182
(1962) ("In the absence of any apparent or declared reason—such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.—the leave sought should,
as the rules require, be 'freely given.'").
IV. 	Discussion
The only matter raised by Plaintiff’s motion to remand is that the jurisdictional
minimum amount is not satisfied. (Doc. 6). The parties do not contest that their
citizenships are completely diverse (Docs. 1, 5, 6, 10) or that venue would be proper
in this district, and the undersigned’s independent review of those aspects of this case
confirms they are not at issue. Plaintiff’s motion to amend seeks to add an “addendum
clause,” providing that “[a]t no point will the Plaintiff request of accept an amount
over $74,500 from the Defendant to resolve this matter,” in what appears to be a
thinly veiled and futile attempt to manufacture a basis for remand. (Doc. 13).
Plaintiff’s motion to remand begins with an incorrect premise that “[t]he 11th
Circuit has consistently held that the value of the object of the litigation must be
considered solely from the Plaintiff’s perspective and not from the Defendant’s
perspective.” (Doc. 6, PageID.188 (citing Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th
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Cir. 2014)). In the context of a removed action seeking injunctive or declaratory relief,
that is generally correct. See e.g., Cohen v. Office Depot, Inc., 204 F.3d 1068, 1077
(11th Cir. 2000). However, Plaintiff does not seek either injunctive or declaratory
relief – instead, his claim is one of indeterminate damages, and when a plaintiff does
not plead a specific amount of damages, “the removing defendant must prove by a
preponderance 	of 	the 	evidence 	that 	the 	amount 	in 	controversy 	exceeds 	the
jurisdictional requirement.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752
(11th Cir. 2010). Indeed, Dudley – the case cited by Plaintiff for his incorrect baseline
premise – observes “a court may rely on evidence put forward by the removing
defendant, as well as reasonable inference and deductions drawn from that evidence”
in determining the amount in controversy. 778 F.3d at 913 (cleaned up). For removal
actions 	based 	on 	indeterminate 	damages, 	what 	matters 	is 	“how 	much 	is 	in
controversy at the time of removal, not later.” Pretka, 608 F.3d at 751 (citations
omitted). Also relevant here is the long-standing and well-settled principle that a
plaintiff’s attempt to reduce the relief sought “by stipulation, by affidavit, or by
amendment of his pleadings” after removal “does not deprive the district court of
jurisdiction” when it is proper in the first instance. Red Cab Co., 303 U.S. at 292
(footnote omitted).
Cloudtrucks contends the jurisdictional minimum is satisfied based upon the
$104,528.02 in medical bills described in Plaintiff’s state court discovery responses,
coupled with Plaintiff’s asserted claims for pain and suffering and mental anguish.
(Doc. 5). In seeking to establish the jurisdictional minimum is not satisfied, Plaintiff
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primarily points to a $72,000 settlement demand sent to Cloudtrucks on January 10,
2024 – the day before filing his motion to remand. (Docs. 6, 6-4). While this settlement
offer “counts for something,” that figure alone is not determinative or dispositive.
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994). See Jackson v. Select
Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. July 31, 2009)
(“Settlement offers commonly reflect puffing and posturing, and such a settlement
offer is entitled to little weight in measuring the preponderance of the evidence”)
(footnote omitted)). This is especially true when the settlement demand is over-
generalized and unspecific, as is the case here. Id. (citations omitted) (see Doc. 6-4).
Moreover, this post-removal demand has little bearing on the Court’s evaluation of
the amount in controversy “at the time of removal.” Pretka, 608 F.3d at 751.
Plaintiff secondarily and very briefly points to the fact that the $104,528.02 in
medical bills have been paid by Plaintiff’s insurance provider and that Plaintiff has
received a subrogation claim from that insurer for $3,377.67. (Doc. 6). While no
argument is advanced on this point, the undersigned notes the mere fact that
insurance has already paid this amount will not otherwise impact the amount of
damages which Plaintiff could claim from Cloudtrucks. See Crocker v. Grammer, 87
So. 3d 1190, 1193 (Ala. Civ. App. 2011) (“Under the common-law collateral-source
rule, ‘an amount of damages is not decreased by benefits received by a plaintiff from
a source wholly collateral to and independent of the wrongdoer’”) (citation omitted)).
Given the little weight a plaintiff’s settlement demand is afforded in the first
instance to establish the jurisdictional minimum, along with the facts that this
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particular 	demand 	lacks 	specificity 	and 	was 	only 	made 	after 	removal, 	the
undersigned is not persuaded the demand is indicative of the amount in controversy
here. Further, the collateral-source rule does not otherwise impact the viability of
Cloudtrucks’ use of the $104,528.02 in medical bills to establish the amount in
controversy. See Crocker, 87 So. 3d at 1193. And this is before even considering
potential damages for Plaintiff’s claims of pain and suffering, mental anguish and
emotional distress, which would only increase the relevant jurisdictional amount.
Accordingly, the undersigned finds Cloudtrucks has established by a preponderance
of the evidence that the jurisdictional amount in controversy is satisfied, such that
this Court may properly exercise diversity jurisdiction over the removed action. 28
U.S.C. § 1332. Therefore, the undersigned RECOMMENDS Plaintiff’s motion to
remand (Doc. 6) be DENIED.
As to Plaintiff’s motion to amend the complaint, which seeks to add an
addendum stating “[a]t no point will the Plaintiff request or accept an amount over
$74,500 from the Defendant to resolve this matter,” it is also RECOMMENDED that
this motion be DENIED.
Plaintiff’s time to amend as a matter of course has passed, and there is no
indication that defendant’s consent has been given, such that Plaintiff may only
amend with the Court’s leave. Fed. R. Civ. P. 15(a)(1). While leave should be “freely
given” in many circumstances, Plaintiff’s attempt to amend here appears aimed at
manufacturing a basis for remand to deprive the Court of jurisdiction under 28 U.S.C.
§ 1332. Such an effort is futile, because even if the motion to amend were granted,
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this Court’s jurisdiction would not detach. Foman, 371 U.S. at 182. See Red Cab Co.,
303 U.S. at 293 (explaining “events occurring subsequent to removal which reduce
the amount recoverable… do not oust the district court’s jurisdiction once it has
attached”). The motion also fails to comport with this Court’s local rules for amended
and supplemental pleadings, which in relevant part provide such motions must
“reproduce the entire pleading as amended” and be “filed as an attachment to the
motion to amend.” See S.D. Ala. CivLR 15(a)-(b). Plaintiff’s motion does neither and
is presented only as a one-page “addendum” to his initial complaint. (Doc. 13).
V. 	Conclusion
Upon 	consideration 	and 	for 	the 	reasons 	stated 	herein, 	the 	undersigned
RECOMMENDS Plaintiff’s motion to remand (Doc. 6) be DENIED, as Cloudtrucks
has shown by a preponderance of the evidence that this Court’s jurisdiction has been
properly invoked under 28 U.S.C. § 1332. Further, the undersigned RECOMMENDS
Plaintiff’s motion to amend (Doc. 13) be DENIED, as the attempted amendment is
both futile and non-compliant with the Court’s local rules.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it must,
within 14 days of the date of service of this document, file specific written objections
with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala.
GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or recommendations contained in a
report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court's order based on unobjected-
to factual and legal conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary
in the interests of justice.” In order to be specific, an objection must identify the
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specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge’s report and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 5th day of March 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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