MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
ROBINSON, District Judge.
This matter comes before the Court on Plaintiff's Motion to Remand, filed June 12, 2001, pursuant to 28 U.S.C. § 1447(c). On April 26, 2001, plaintiff Coca-Cola Bottling of Emporia ("Coca-Cola") filed a petition in the District Court of Lyon County, Kansas seeking damages and injunctive relief for breach of contract and tortious interference with contract and with prospective business advantage by defendant South Beach Beverage Co, Inc. ("SoBe"). On May 14, 2001, SoBe removed the action to this Court. Because SoBe has failed its burden of proving that the amount in controversy exceeds $75,000, the Court finds that Coca-Cola's motion to remand should be granted.
Coca-Cola is a Kansas corporation with its principal place of business in Kansas. SoBe is incorporated under the laws of Delaware and maintains its principal place of business in Connecticut. Coca-Cola asserts that on October 25, 2000, Coca-Cola and SoBe entered into a distributorship agreement whereby the parties agreed that Coca-Cola would purchase a minimum volume of SoBe's products. It is disputed whether this document constituted a contract between the parties, but it is the basis upon which this lawsuit arises. On February 22, 2001, SoBe sent notice to Plaintiff of its intent to "terminate its distributor agreement" with Coca-Cola on April 23, 2001.
Coca-Cola thereafter filed suit against SoBe in the District Court of Lyon County, Kansas for breach of contract and tortious interference with contract and with prospective business advantage. In its verified petition, Coca-Cola pled damages of $74,000 on the breach of contract claim; for the tortious interference claim, Coca-Cola did not plead a specific amount of damages, but pled that the damages would not exceed $75,000. Coca-Cola also prayed for injunctive relief.
On May 14, 2001, SoBe filed a Notice of Removal, in which it asserted that the damages for the breach of contract claim would exceed $74,000, the damages for the tortious interference claim would exceed $75,000, and that if an injunction was granted, SoBe's damages and attorney fees resulting from its complying with the injunction would satisfy the $75,000 amount in controversy requirement. Specifically, SoBe claimed that the breach of contract claim would exceed $75,000 because "the damages alleged by plaintiff are less than the profit plaintiff would make it if sold the minimum volume under said contract." With regard to the tortious interference claim, SoBe stated that Coca-Cola "does not disclaim damages in excess of $75,000 ... and therefore Count II satisfies the amount in controversy requirement."
Finally, in the Notice of Removal, SoBe asserted that Coca-Cola's claims for breach of contract and tortious interference, when taken together, would exceed $75,000, and that in addition, Coca-Cola's attorney's fees would add to the aggregate and exceed $75,000. Neither Coca-Cola's complaint nor SoBe's Notice of Removal asserts any statutory basis for attorney fees, nor does SoBe's Notice of Removal estimate or calculate the amount of Coca-Cola's attorney's fees. SoBe provided no other underlying facts in its Notice of Removal in support of these assertions.
In SoBe's response to Coca-Cola's motion to remand, SoBe further stated that the minimum purchase volume totals 12,700 cases such that Coca-Cola's profit would have to exceed $75,000 because "[t]he profit per case that a distributor would be expected to make ... is greater than $5.91 per case ($75,000 divided by 12,700)." Yet, this assertion is not supported or clarified with any explanation of the pricing structure, nor any figures, facts or calculations of Coca-Cola's anticipated profit margin or the profit margins of similarly situated distributors, if any. SoBe also attached to its response the affidavit of Richard MacLean, Senior Vice President of Business Affairs of SoBe, stating that lost profits would be greater than $75,000. The affidavit includes no underlying data, facts, figures or calculations in support of this blanket statement.
Standard for Removal
A civil action is removable only if a plaintiff could have originally brought the action in federal court.
In the Notice of Removal, SoBe asserts that this Court has original diversity jurisdiction, which requires complete diversity between the parties and an amount in controversy in excess of $75,000.
In determining whether there is the requisite amount in controversy, the court considers the allegations in the complaint, and where not dispositive, the allegations in the notice of removal.
And, as the Tenth Circuit noted in Laughlin v. Kmart Corp.,
Even if the Court considered the additional information proffered in SoBe's response to Coca-Cola's motion to remand, the Court would conclude that SoBe failed its burden of proving that the amount in
SoBe contends that it need only show by a preponderance of the evidence that the amount in controversy will exceed $75,000. The Court disagrees. Because Coca-Cola specifically pled an amount under the $75,000 threshold, SoBe's burden of proof must be higher than the preponderance of evidence standard.
Courts are split on this issue of the appropriate burden of proof for removal of a state court action in which the plaintiff specifically pled less than the requisite amount in controversy for original diversity jurisdiction in federal court.
Thus, in order to overcome this presumption and show bad faith, the defendant
Other courts, recognizing that such a heavy burden might result in the cumbersome process of a mini-trial on the amount in controversy, have opted for lesser burdens of proof. The Sixth Circuit, in Gafford v. General Elec. Co.,
Still other courts have used the "preponderance of evidence" standard. This is the standard typically used when the plaintiff did not expressly plead an amount of damages in its state court action.
In De Aguilar v. Boeing Co.,
This Court adopts the "reasonable certainty" standard used by the Sixth Circuit in Gafford v. General Elec. Co.
IT IS THEREFORE ORDERED that Plaintiff's Motion To Remand is GRANTED.
IT IS FURTHER ORDERED that Coca-Cola submit a Bill of Costs in support of its request that the Court grant costs and actual expenses, including attorney's fees per 28 U.S.C. § 1447(c).
IT IS SO ORDERED.