Warner v. Bosque Enterprises, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANIEL WARNER,
Plaintiff,
v. 	No. 2:26-cv-1278-GJF-KRS
BOSQUE ENERGY, INC.; and
PERMIAN RESOURCES OPERATING, LLC,
Defendants.
ORDER TO AMEND NOTICE OF REMOVAL
The Court has a sua sponte duty to determine whether subject matter jurisdiction exists.
See Tuck v. United States Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988). For the reasons
discussed below, Defendant Permian Resources Operating, LLC is ordered to file an amended
notice of removal that plausibly alleges diversity jurisdiction.
Standard
If removal of a civil action is based on diversity jurisdiction, “the notice of removal may
assert the amount in controversy if the initial pleading seeks … a money judgment, but the State
practice either does not permit demand for a specific sum or permits recovery of damages in excess
of the amount demanded.” 28 U.S.C. § 1446(c)(2)(A)(ii); see Buscema v. Wal-Mart Stores E. LP,
485 F. Supp. 3d 1319, 1328 (D.N.M. 2020) (“When a complaint does not state a specific amount
in controversy, a defendant’s notice of removal may do so.”). A removing defendant’s
jurisdictional allegations in the notice of removal, however, must satisfy the plausibility pleading
standard. See Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 (2014). Thus, a
conclusory allegation that the amount in controversy exceeds $75,000, without setting forth the
underlying facts supporting that allegation, is insufficient, as it does not satisfy the requirement of
plausibility. See, e.g., Williams v. Best Buy Co., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
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If the state court complaint does not contain sufficient facts for the removing defendant to
plausibly allege that more than $75,000 is in controversy, then the removing defendant may refer
in the notice of removal to additional facts outside the complaint to fill in the gap. See McPhail v.
Deere & Co., 529 F.3d 947, 955 (10th Cir. 2008) (in the absence of either an explicit demand in
the complaint for more than $75,000.00, or specific factual allegations from which an actual
calculation can be performed, the removing defendant must show how much is in controversy
through other means, such as “interrogatories or admissions in state court; … informal estimates
or settlement demands[;] or …. evidence, in the form of affidavits from the defendant’s employees
or experts, about how much it would cost to satisfy the plaintiff’s demands” (quoting Meridian
Sec. Ins. Co. v. Sadowski, 441 F.3d 536 (7th Cir. 2006))); see also Roe v. Michelin N. Am., Inc.,
613 F.3d 1058, 1061 (11th Cir. 2010) (explaining that in some cases, the removing defendant may
need “to provide additional evidence demonstrating that removal is proper”). If the information
outside the complaint needed by the defendant to plausibly allege the jurisdictional minimum is
not already in the defendant’s possession, then the thirty-day clock for removal will not begin to
run until the defendant receives that additional information “through service or otherwise, of a
copy of an amended pleading, motion, order or other paper” containing the necessary information.
28 U.S.C. § 1446(b)(3).
Once the removing defendant has plausibly alleged that the amount in controversy exceeds
$75,000, evidence “establishing jurisdiction [is not] required,” unless “the plaintiff contests, or the
court questions, the defendant’s [plausible] allegation[s].” Brown v. Nationwide Ins. Co., No. 21-
4122, 2023 WL 4174064, at *4 (10th Cir. June 26, 2023) (citing Dart Cherokee, 574 U.S. at 89,
and McPhail, 529 F.3d at 955)). If a challenge is made, “the ‘party invoking diversity jurisdiction
bears the burden of proving its existence by a preponderance of the evidence.’” Id. (quoting
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Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014)); see 28 U.S.C.A. § 1446(c)(2)(B)
(“removal of the action is proper on the basis of an amount in controversy asserted [in the notice
of removal] if the district court finds, by the preponderance of the evidence, that the amount in
controversy exceeds the amount specified in section 1332(a)”).
Here, the Notice of Removal’s allegations concerning the amount in controversy rely solely
on the facts alleged in the underlying state court complaint. The underlying complaint includes the
conclusory allegation that the plaintiff was seriously injured, but does not contain sufficient facts
about the nature of the plaintiff’s injuries or medical expenses for the Court to conclude without
speculating that the jurisdictional amount has been plausibly alleged. See Leyva v. Macia, No.
2:26-cv-266 GJF-KRS, Doc. 6 (D.N.M. Feb. 6, 2026); Landeros v. Singh, No. 2:25-CV-352-GJF-
KRS, 2025 WL 1795159, at *2 (D.N.M. June 30, 2025); Medina on behalf of Medina v. Wal-Mart
Stores E., Inc., No. CV 24-767 GBW/KRS, 2024 WL 5087557, at *2 (D.N.M. Dec. 12, 2024). Nor
is the plea in the underlying complaint for “various types of damages for an unspecified amount
of money” sufficient for the Court to estimate, without resorting to speculation, what the plaintiff’s
claimed damages amount to and whether those damages exceed the jurisdictional minimum. See,
e.g., Hernandez v. Safeco Ins. Co. of Am., No. CV 11-245 JP/CG, 2011 WL 13284598, at *3
(D.N.M. Sept. 8, 2011); see also Warren v. Wild 1, Inc., No. CV 24-00471-KD-B, 2025 WL
980081, at *11 (S.D. Ala. Mar. 13, 2025); Romero-Palacios v. Warren Elec., LLC, No. PE:21-
CV-00042-DC-DF, 	2022 	WL 	508342, 	at 	*5 	(W.D. 	Tex. 	Feb. 	18, 	2022), 	report 	and
recommendation adopted, No. P:21-CV-00042-DC, 2022 WL 1546717 (W.D. Tex. Mar. 8, 2022).
Accordingly, Defendant Permian Resources Operating, LLC is ordered to amend the
jurisdictional allegations in [1] Notice of Removal to plausibly allege that the amount in
controversy exceeds $75,000. The amendment shall be filed on or before May 29, 2026. Defendant
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is further advised to consult FED. R. CIV. P. 81(c)(2) for the deadline for a defendant to answer or
otherwise respond to the complaint after removal when the defendant did not answer while the
case was pending in state court.
IT IS SO ORDERED this 18th day of May, 2026.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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