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Fortune v. Xfit Brands, Inc.

United States District Court, S.D. Mississippi, Northern Division

December 4, 2018

LARRY FORTUNE PLAINTIFF
v.
XFIT BRANDS, INC. DEFENDANT

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.

         Before the Court is Larry Fortune's motion to remand. For the reasons that follow, the motion will be denied.

         I. Background

         In 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.

         In 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.

         The 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 attorney's fees.

         The 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).

         II. Discussion

         Federal 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).

         Fortune 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).

         In 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).[1]

         Judge 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.

         A. Federal Courts May Use Requests for Admission to Determine the Amount in Controversy

         Judge 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 ...


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