      CASE 0:20-cv-01014-SRN-LIB Document 23 Filed 05/18/20 Page 1 of 5




                           UNITED STATES DISTRICT COURT
                              DISTRICT OF MINNESOTA


Robert E. Mathias,                  )       Case File No.: 0:20-cv-01014 SRN/LIB
                                    )
              Plaintiff,            )
vs.                                 )       DEFENDANT’S MEMORANDUM OF
                                    )       LAW IN OPPOSITION TO MOTION TO
Susan Hettich,                      )       REMAND
                                    )
              Defendant.            )
                                    )



                                     INTRODUCTION

       Despite three-weeks notice to Plaintiff that Defendant was contemplating removing

this action to federal court, Plaintiff took no steps to clarify his claims or limit his damages

below the jurisdictional limit set forth in 28 U.S.C. § 1332(a). (Doc. #1-4). Instead, Plaintiff

did just the opposite. He informed Defendant: “Rest assured I have read the Minnesota cases

of defamation and there is no doubt that I have a perfect case against you.” (Doc. #1-9, p.2).

He went on to state: “Make no mistake, I will get a punitive damage award against you.”

(Doc. #1-9, p. 1). In his affidavit in support of motion to remand, Plaintiff continues to

believe his conversion claim could give rise to punitive damages. (Doc, #21, ¶9). Yet,

without any explanation, he believes that the damages will not exceed $75,000. Plaintiff,

without citing a single case in support of his motion, is attempting to use a post-removal

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affidavit to defeat jurisdiction. Plaintiff’s untimely attempt to defeat jurisdiction should be

denied.

                                       DISCUSSION

       Decades ago the United States Supreme Court explained that in diversity cases:

       If the plaintiff could, no matter how bona fide his original claim in the state
       court, reduce the amount of his demand to defeat federal jurisdiction the
       defendant's supposed statutory right of removal would be subject to the
       plaintiff’s caprice. The claim, whether well or ill founded in fact, fixes the
       right of the defendant to remove, and the plaintiff ought not to be able to
       defeat that right and bring the cause back to the state court at his election. If
       he does not desire to try his case in the federal court he may resort to the
       expedient of suing for less than the jurisdictional amount, and though he would
       be justly entitled to more, the defendant cannot remove.

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, (1938). Here, there is no

dispute that the parties are residents of different states. “[A] defendant’s notice of removal

need include only a plausible allegation that the amount in controversy exceeds the

jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81,

89 (2014) The jurisdictional inquiry for the amount in controversy focuses on the claims

made at the time of removal. James Neff Kramper Family Farm P’ship v. IBP, Inc., 393 F.3d

828, 833–34 (8th Cir. 2005); see Pudlowski v. The St. Louis Rams, LLC, 829 F.3d 963, 964

(8th Cir. 2016) (per curiam) (“noting jurisdiction is measured at the time of removal and facts

arising subsequent to removal have no bearing on the court’s jurisdictional determination).

The party asserting federal jurisdiction bears the burden of showing the amount in

controversy requirement is met. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th


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Cir. 1969). If the complaint states an amount that is not specifically above the federal

jurisdictional limit, a defendant seeking removal bears the burden of proving, by a

preponderance of the evidence, that the amount in controversy exceeds $75,000. In re Minn.

Mut. Life Ins. Co. v. Sales Practices Litig., 346 F.3d 830, 840 (8th Cir. 2003). This burden

can be met by submitting evidence that the damages may exceed the jurisdictional minimum.

In other words, “The jurisdictional fact . . . is not whether the damages are greater than the

requisite amount, but whether a fact finder might legally conclude they are.” Neff Kramper

Family Farm P’ship, 393 F.3d at 833 (quoting Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir.

2002)).

       At the time of removal, Plaintiff’s complaint alleged damages in excess of $50,000.

Plaintiff insisted that he had “a perfect case” against Defendant. Plaintiff indicated to

Defendant that he “will get a punitive damages award.” (Doc. #1-9, p. 1). Under Minnesota

law, “punitive damages can be awarded in cases of defamation per se without proof of actual

damage to the plaintiff.” Hern v. Bankers Life Cas. Co., 133 F.Supp.2d 1130, 1135 (D.

Minn. Jan. 12, 2001) (quoting Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 259

(Minn. 1980)). Plaintiff repeats in his affidavit in support of motion to remand that he will

seek punitive damages. Punitive damages are included in determining the amount in

controversy. Larkin v. Brown, 41 F.3d 387, 388 (8th Cir. 1994). Additionally, at the time

of removal, Defendant had counterclaimed for, among other damages, an award of attorney’s

fees under Minn. Stat. § 549.211. Statutory attorney fees can count toward the jurisdictional


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minimum calculation. Rasmussen v. State Farm Mut. Auto. Ins. Co., 410 F.3d 1029, 1031

(8th Cir. 2005) (citing Crawford v. F. Hoffman-LaRochem Ltd., 267 F.3d 760, 766 (8th Cir.

2001)). Defendant has shown by a preponderance of the evidence that the “amount in

controversy” plausibly exceeded the jurisdictional limit at the time of removal. See Pirozzi

v. Massage Envy Franchising, LLC, 938 F.3d 981, 984 (8th Cir. 2019) (quoting Raskas v.

Johnson & Johnson, 719 F.3d 884, 888 (8th Cir. 2013) (when the notice of removal plausibly

alleges that the plaintiff might recover actual damages, punitive damages, and attorneys’ fees

aggregating more than the jurisdictional threshold, “then the case belongs in federal court

unless it is legally impossible for the plaintiff to recover that much.”).

       The Eighth Circuit has determined that a plaintiff’s post-removal voluntary reduction

of his claim to less than the jurisdictional amount does not defeat federal jurisdiction

acquired through removal. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir.

1969). District courts routinely deny motions to remand when a plaintiff attempts to defeat

jurisdiction by amending his complaint or stipulating to damages in an amount less than the

jurisdictional threshold. See, e.g., Salazar v. Tyson Foods, Inc., 985 F.Supp.2d 996, 1002

(S.D. Iowa 2013) (finding the plaintiff’s stipulation reducing his damages to $73,000 is “an

impermissible and unsuccessful post hoc attempt to cap his requested damages to defeat

federal jurisdiction”); Peterson v. Sagebrush Res. LLC, 736 F. Supp. 2d 1237, 1239 (D.N.D.

2010) (denying remand when plaintiff amended his complaint after removal to request

damages below the jurisdictional threshold); Kaufman v. Costco Wholesale Corp., 571


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F.Supp.2d 1061, 1064 (D. Minn. 2008) (citing Hatridge, 415 F.2d at 814).

       Much like the plaintiff in Kaufman, here, Plaintiff’s post-removal about-face

regarding his claim for damages is not to “clarify” his damages, but to avoid federal court.

With the exception of a three-year period from August 2005 to June 2008, Defendant has

resided in North Dakota since 1999. As such, Defendant is a long-time North Dakota

resident and has invoked her statutory right to have this case heard in federal court. “The

important issue of whether a federal court has jurisdiction over a lawsuit on the basis of

amount in controversy should be decided on the basis of substance, not gamesmanship.

Kaufman, 517 F.Supp.2d at 1066 (quotation and citation omitted).

       Plaintiff’s motion to remand and sealed memorandum in support are entirely lacking

in substance. In fact, they fail to cite a single case that is supportive of Plaintiff’s request.

The lack of legal authority is demonstrative of Plaintiff’s gamesmanship. It is well-

established in this court that a post-removal affidavit is an impermissible avenue to defeat

jurisdiction that plausibly existed at the time of removal. Defendant respectfully requests that

the court deny Plaintiff’s motion to remand without holding a hearing.


       Dated: May 18, 2020.
                                                    /s/ Ronald K. Hettich
                                                    Ronald K. Hettich - MN #0325867
                                                    Attorney for Defendant
                                                    112 N. University Drive, Suite 323
                                                    Fargo, ND 58102
                                                    Tel: 435.663.2509/Fax: 435.663.2509
                                                    christina64@example.net


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