United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
the Court is Larry Fortune's motion to remand. For the
reasons that follow, the motion will be denied.
2017, Larry Fortune filed this breach of contract action
against XFit Brands in Mississippi state court. He sought
$66, 500 in damages, plus statutory attorney's fees under
Mississippi Code § 11-53-81. Although the parties are
citizens of different states, the case was not removable to
federal court because it was not obvious that the amount in
controversy exceeded $75, 000.
2018, XFit propounded discovery requests to Fortune. One of
the requests asked Fortune to "admit that You [sic] are
not seeking in excess of $75, 000 in this litigation."
Fortune responded, "Denied." He did not respond to
any other discovery request. Xfit promptly removed the case
here pursuant to diversity jurisdiction.
present motion followed. In it, Fortune contends that his
admission was insufficient to establish the amount in
controversy. Alternatively, Fortune argues that the amount in
controversy exceeds $75, 000 only because the extended
litigation is forcing him to raise his demand for statutory
familiar legal standard applies and need not be recited anew.
See Powell v. Target Corp., No. 3:16-CV-127, 2016 WL
4573974, at *l-2 (S.D.Miss. Sept. 1, 2016).
judges in this State generally accept XFit's approach to
establishing the amount in controversy-targeted discovery
requests in state court. One judge found it "axiomatic
that when a plaintiff fails to admit or stipulate that he
will not accept more than $75, 000 in damages, a federal
court may deem that failure to be sufficient proof that the
amount in controversy exceeds $75, 000 and that the federal
diversity jurisdictional amount is therefore satisfied."
Easley v. Lowe'sHome Ctrs., Inc., No.
1:06-CV-291, 2007 WL 2127281, at *3 (N.D. Miss. July 23,
2007) (collecting cases).
argues that this Court should depart from this well-trod
path. "A response to a request for admission standing
alone," he says, "is insufficient to establish the
amount in controversy for diversity jurisdiction
purposes." Docket No. 4 at 5. His argument is based upon
Mabry v. Government Employee's Insurance
Company, 267 F.Supp.3d 724 (N.D. Miss. 2017).
Mabry, my colleague Judge Brown charted a new
course. She first found that under Mississippi Rule of Civil
Procedure 36(a), a plaintiff's denial of the amount in
controversy "may not be deemed anything more than a
statement that the requested admission presents a genuine
issue for trial." Id. at 729. She then held
that as a matter of federal procedure, using requests for
admission to determine the amount in controversy "cannot
be squared with the well-established rule that litigants
cannot bestow subject matter jurisdiction on federal courts
by waiver or consent." Id. (quotation marks,
citation, and brackets omitted).
Brown's new course has persuaded this Court to conduct a
careful review of our customary approach. After considering
the points raised by my friend, I still believe the customary
approach is the most appropriate path to travel, at least
given the record in this case. My response to Judge Brown
follows. I take up her lines of reasoning in reverse order.
Federal Courts May Use Requests for Admission to
Determine the Amount in Controversy
Brown contends that federal courts cannot use requests for
admission to determine the amount in controversy because
"litigants cannot bestow subject matter jurisdiction on
federal courts by waiver or consent." But it is not
clear why the "waiver or ...