FINDINGS AND RECOMMENDATION
THOMAS D. THALKEN, Magistrate Judge.
This matter comes before the court on the plaintiff's Motion to Remand (Filing No. 7). The plaintiff filed a brief (Filing No. 7-1) in support of the motion. The defendant filed a brief (Filing No. 8) and an index of evidence (Filing No. 9) in opposition to the motion. The plaintiff filed a brief (Filing No. 11) in reply.
This case arises out of the employment relationship between the parties. See Filing No. 1-1 - Complaint. The defendant, who operates a meat packing plant in Lexington, Nebraska, employed the plaintiff from September 21, 2010, until his termination on June 4, 2013. Id. ¶¶ 1-2. Prior to his termination, the plaintiff developed pain in his left wrist, which began on May 31, 2012. Id. ¶ 10. The plaintiff sought treatment under the Nebraska Worker's Compensation Act. Id. Although his doctor, Scott Carroll (Dr. Carroll), recommended surgery, the plaintiff refused surgery and was released to work. Id. ¶¶ 11-13. On February 6, 2013, the plaintiff developed a hernia from his work duties. Id. ¶ 14. On February 28, 2013, the plaintiff reported to his employer he was suffering problems with his right hand, which were caused by overuse due to a left arm injury. Id. ¶ 15, 17. The plaintiff alleges the defendant persuaded him to choose Dr. Carroll and denied his request for another doctor to treat him and perform surgery on his wrist. Id. ¶¶ 18-20. Ultimately, the plaintiff retained an attorney, commenced an action in Nebraska Worker's Compensation Court (NWCC), and moved, in the NWCC, to choose his own doctor, Daniel Cullen (Dr. Cullen). Id. ¶¶ 18-24. The motion was granted. Id. ¶ 24. On May 17, 2013, when the plaintiff's Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA), leave was about to expire, the plaintiff submitted a written request for extended leave. Id. ¶ 25. The defendant denied the plaintiff's request for extended leave. Id. ¶ 26. The plaintiff alleges the defendant denied the leave in bad faith as retaliation for the plaintiff exercising his right to choose his preferred doctor and hire an attorney. Id. ¶ 26. The plaintiff alleges other employees, who did not choose a different doctor or hire an attorney, received extended leave. Id. ¶ 27. The plaintiff alleges the defendant's stated reason for his termination, i.e., failure to provide doctor's verification he was unable to work, was a pretext in light of the defendant's wrongful denial of the plaintiff's treatment on his right wrist. Id. ¶ 29. Nevertheless, the plaintiff alleges Dr. Carroll restricted the plaintiff from any use of his right arm by March 14, 2013, which restriction the defendant had knowledge of prior to his termination. Id. ¶ 30. Based on these facts, the plaintiff alleges his status as an injured worker was a motivating factor for the defendant terminating him. The plaintiff seeks "monetary relief including but not limited to back pay, front pay, compensatory and punitive damages." Id. at 5. The plaintiff does not state a specific amount of damages. Id. The defendant denies liability. See Filing No. 10 - Answer.
The plaintiff filed his lawsuit on September 9, 2013, in the District Court of Dawson County, Nebraska. See Filing No. 1-1 - Complaint. On October 11, 2013, the defendant removed the case to the United States District Court for the District of Nebraska. See Filing No. 1 - Notice of Removal. The defendant alleges this action is removable pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds $75, 000 and there is complete diversity of citizenship between the parties. See id. ¶ 8. On October 25, 2013, the plaintiff filed the instant motion to remand arguing this court lacks jurisdiction because the defendant has failed to produce any evidence to sustain its burden the claim meets the amount in controversy requirement. See Filing No. 7-1 - Brief p. 1. Additionally, the plaintiff argues Dawson County is a more convenient location for the plaintiff and other witnesses and the subject matter is primarily a state concern as it relates to a worker's compensation claim. Id. For the reasons set forth below, the undersigned magistrate judge recommends the plaintiff's motion to remand be denied.
The court must look to a federal statute to determine if an action was properly removed to federal court. The federal statute governing removal provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a).
The defendant removed this action based on diversity jurisdiction. The United States District Court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States...." 28 U.S.C. § 1332(a). The parties do not dispute the parties are citizens of different states. The plaintiff is a resident of Nebraska and the defendant is a Delaware corporation with its principal place of business in Arkansas. See Filing No. 1 - Notice of Removal ¶ 5; Filing No. 1-1 - Complaint ¶¶ 1-2. Accordingly, the court need only determine whether the amount in controversy requirement has been met. "[T]he party seeking removal has the burden to establish federal subject matter jurisdiction [by a preponderance of the evidence]; all doubts about federal jurisdiction must be resolved in favor of remand[.]" Cent. Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc. , 561 F.3d 904, 912 (8th Cir. 2009) (internal citations omitted); see also In re Prempro Prods. Liab. Litig. , 591 F.3d 613, 620 (8th Cir. 2010).
When, as in the instant matter, damages are not fully specified in the state court complaint, the removing party "has the burden of proving that the amount in controversy exceeds the jurisdictional minimum." Bell v. Hershey Co. , 557 F.3d 953, 956 (8th Cir. 2009). The determination about whether a federal court has removal jurisdiction is made on the basis of the record at the time of removal. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26, 43 (1998) ("[R]emoval is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment."); Keene Corp. v. United States , 508 U.S. 200, 207-08 (1993) (noting "subject-matter jurisdiction turns on the facts upon filing" in federal court); Hargis v. Access Capital Funding, LLC , 674 F.3d 783, 789 (8th Cir. 2012) ("It is axiomatic that the court's jurisdiction is measured either at the time the action is commenced or, more pertinent to this case, at the time of removal."). "Under the preponderance standard, [t]he jurisdictional fact... is not whether the damages are greater than the requisite amount, but whether a fact finder might legally conclude that they are....'" Bell , 557 F.3d at 958. When a defendant satisfies the burden of proving by a preponderance of the evidence that the amount-in-controversy is greater than the jurisdictional amount, the plaintiff can still defeat removal by showing to a legal certainty that recovery cannot exceed the jurisdictional amount. See Hargis , 674 F.3d at 789-90. A plaintiff might meet that burden by citing a state law or a binding stipulation which limits the plaintiff's recovery of damages.
In this case, the face of the complaint does not state a specific amount of damages. See Filing No. 1-1. The plaintiff contends the defendant has wholly failed to present any facts or actual evidence in support of the amount in controversy. See Filing No. 7-1 - Brief p. 3; Filing No. 11 - Reply p. 1. Further, the plaintiff argues the matter is a state concern better resolved by the state court, which would be a more convenient forum for the plaintiff and other witnesses. See Filing No. 7-1 - Brief 4-5. Such factors are irrelevant to remand.
The defendant argues the types of damages sought by the plaintiff in the complaint are such that a fact-finder might legally conclude the damages exceed $75, 000. See Filing No. 8 - Response p. 4. Specifically, the defendant shows that based on the plaintiff's earnings at the time of his termination, he would likely attempt to prove he was entitled to 72 weeks (assuming trial occurs at least 18 months after the plaintiff's termination) of back wages equaling $35, 000. Id. (citing Reynolds decl. showing the plaintiff earned $13.55 per hour and was expected to work 36 hours each week at the time of his termination). Additionally, the defendant argues a jury may reasonably award the plaintiff front pay on his claim for retaliatory termination for one, two, or up to five years. Id. (citing cases awarding front pay). If front pay were awarded for a two-year period, the plaintiff would be entitled to $50, 700. Id. Finally, the defendant contends the plaintiff's claim for compensatory damages may reasonably result in an award in a range from $20, 000 to $75, 000, based on relevant case law. Id. at 5.
By contrast, the plaintiff argues one case relied upon by the defendant is inapposite. In Walker v. Lanoga Corp. , No. 06-0148CV-W-FJG, 2006 WL 1594451, at *2 (W.D. Mo. June 9, 2006), the court determined the defendant had adequately established the amount in controversy would exceed the jurisdictional minimum when the back pay damages were $35, 000 " as of the date of removal " and could then be combined with the other alleged damages including front pay and emotional damages. The plaintiff does not attempt to show his claims do not exceed $75, 000, but states the plaintiff's back pay would amount to roughly $7, 500 at the time of removal. See Filing No. 11 - Reply p. 2. Although the Walker court stated the back pay amount as of the date of removal, the court evaluates the amount of the controversy based on the allegations in the complaint at the time of removal. By distinction, the amount of damages are calculated by determining whether a plaintiff's verdict might reasonably and legally exceed $75, 000. "The amount in controversy in a wrongful discharge suit, then, includes what the plaintiff would have earned but for the termination of his employment, even if those sums had not yet become due at the time of removal." Lowe v. Sears Holding Corp. , 545 F.Supp.2d 195 (D. N.H. 2008) (citing Hardemon v. City of Boston , 144 F.3d 24, 26-27 (1st Cir. 1998) and White v. FCI USA, Inc. , 319 F.3d 672, 675-76 (5th Cir. 2003)). ...