United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
CHERYL R. ZWART, Magistrate Judge.
The plaintiff's complaint, originally filed in the District Court of Scotts Bluff County, Nebraska, was removed to this forum on March 28, 2014. The defendants claim this court has diversity jurisdiction because:
the plaintiff is a Nebraska Limited Liability Corporation with its principal place of business in Scotts Bluff County, Nebraska, and is therefore a Nebraska citizen;
the defendant is a Missouri corporation with its principal place of business located in Joplin, Missouri, and is therefore a Missouri citizen; and
the amount in controversy exceeds $75, 000.
(Filing No. 1, at CM/ECF p. 2). See 28 U.S.C. § 1332(a).
The members of the plaintiff, a limited liability company, are Nebraska citizens, and the defendant is a Missouri corporation. (Filing No. 20). There is complete diversity of citizenship. GMAC Commercial Credit LLC v. Dillard Department Stores, Inc., 357 F.3d 827, 828 (8th Cir.2004).
The jurisdictional question raised by plaintiff's motion for remand is whether the amount in controversy is less than $75, 000. (Filing No. 7). The plaintiff's complaint alleges it purchased defective shingles from the defendant, and is entitled to recover the cost of purchasing and installing replacement shingles. The plaintiff filed a prior lawsuit seeking recovery for this same alleged loss. The first complaint, also filed in the District Court of Scotts Bluff County, Nebraska, stated the replacement cost and labor for the shingles was $102, 396.00. After the defendant removed that complaint to this forum, the plaintiff voluntarily dismissed his complaint (as a matter of right) before the defendant filed an answer or moved for summary judgment. (See 4:14-cv-03029-RGK-CRZ, Cheema Investments, LLC v. Tamko Building Products, Inc. ).
The plaintiff then re-filed its complaint in the state court. The new complaint, now removed to this forum, is identical to the first one except that the plaintiff now requests $73, 500.00, not $102, 396.00, in its prayers for relief. But likely due to an oversight, paragraph 18 of the current complaint still alleges the replacement shingles will cost $102, 396.00, (Filing No. 1-2, at CM/ECF p. 5, ¶ 18).
A federal court has subject matter jurisdiction in a diversity case when a fact finder could legally conclude that plaintiff's damages are greater than $75, 000. Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002). A removing party must show, by a preponderance of the evidence, that a fact finder might legally conclude that the amount in controversy exceeds $75, 000, irrespective of whether the complaint alleges an amount below the jurisdictional minimum. Hargis v. Access Capital Funding, LLC , 674 F.3d 783, 789 (8th Cir. 2012). In removed cases, federal subject matter jurisdiction attaches at the time of removal, the amount in controversy is assessed based on the pleadings at the time of removal, and not on rulings, pleading amendments, or stipulations made thereafter. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292-93 (1938). See also, Grawitch v. Charter Communications, Inc., 2014 WL 1718737, 3 (8th Cir. May 2, 2014).
The complaint removed to this forum for Plaintiff's above-captioned lawsuit includes the following prayer for relief:
Plaintiff prays for judgment against Defendant for breach of warranty in the amount of $73, 500.00, the same constituting the full replacement cost (minus material certificates previously provided) and labor payment of the roofs on Plaintiffs properties, for the costs of this action, and for such other and further relief as shall in the premises be provided.
(Filing No. 1-2). The plaintiff argues the case must be remanded because the prayer for relief in the complaint governs the amount at issue, and since the plaintiff is seeking less than $75, 000, this court lacks federal diversity jurisdiction. The plaintiff claims an amount exceeding $75, 000 cannot be "in controversy" because based on the ...