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`IN THE UNITED STATES DISTRICT COURT FOR THE
`MIDDLE DISTRICT OF GEORGIA
`ATHENS DIVISION
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`DIANE CARTEY,
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`Plaintiff,
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`v.
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`Defendants.
`___________________________________ :
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`CIVIL ACTION
`No. 3:20-CV-133-CAR
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`NUTRIEN AG SOLUTIONS
`and AERIAL SPECIALISTS INC.,
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`ORDER ON PLAINTIFF’S MOTION TO REMAND
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`Defendants removed this action from the Superior Court of Morgan County,
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`Georgia alleging diversity as the basis for federal jurisdiction. Plaintiff filed a Motion to
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`Remand, contending the Court lacks subject matter jurisdiction because the amount in
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`controversy does not exceed $75,000. The Court disagrees and finds that Defendant has
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`proven by a preponderance of the evidence that the amount in controversy is met. Thus,
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`Plaintiff’s Motion to Remand [Doc. 9] is DENIED. The stay of discovery authorized in
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`this case is hereby LIFTED.
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`BACKGROUND
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`Plaintiff filed this action in Morgan County Superior Court against Defendants
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`Nutrien Ag Solutions and Aerial Specialists Inc. for negligence and trespass under
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`Georgia state law after an Aerial Specialists employee flew a helicopter over Plaintiff’s
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`1
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`Case 3:20-cv-00133-CAR Document 18 Filed 04/23/21 Page 2 of 6
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`property, sprayed her blueberry bushes with herbicide, and destroyed them.1 Although
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`Plaintiff alleges she “incurred expenses and damages of $74.999.99 or less,” she also
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`seeks punitive damages “congruous with [Defendants’] overwhelmingly negligent
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`actions.”2
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`Defendants timely removed the case to this Court pursuant to the Court’s
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`diversity jurisdiction. Plaintiff filed a Motion to Remand, arguing the Court lacks subject
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`matter jurisdiction because Plaintiff seeks $75,000 or less.3 In their response, Defendants
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`attached two pre-suit demand letters from Plaintiff’s counsel.4 Plaintiff’s counsel sent
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`the first letter on January 31, 2020, seeking $500,000 in combined compensatory and
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`punitive damages.5 The letter included detailed calculations for compensatory
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`damages, including $11,280.00 in lost profits from the initial blueberry crop; a $22,560.00
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`compounded profit loss from soil inactivity; between $7,886.60 and $18,206.63 in
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`replacement costs for the blueberry bushes; and between $15,000.00 and $22,000.00 in
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`soil reconditioning, labor, and replant costs.6 Counsel used these estimates to calculate
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`total compensatory damages between $56,726.60 and $74,046.63.7 Counsel then stated
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`that damages would be “substantially compounded” by “punitive elements.”8
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`1 See generally, Plaintiff’s Amended Complaint [Doc 17].
`2 Plaintiff’s Amended Complaint, ¶¶ 10, 11.
`3 Plaintiff’s Motion to Remand, p. 3 [Doc 9].
`4 Response to Motion to Remand, Exhibit A and Exhibit B [Docs. 11-1 and 11-2].
`5 Response to Motion to Remand, Exhibit A.
`6 Id.
`7 Id.
`8 Id.
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`2
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`Case 3:20-cv-00133-CAR Document 18 Filed 04/23/21 Page 3 of 6
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`Plaintiff’s counsel sent a second letter on May 21, 2021, lowering his demand to
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`$480,000.9
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`“[I]n assessing the propriety of removal, the court considers the document
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`received by the defendant from the plaintiff—be it the initial complaint or a later
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`received paper—and determines whether that document and the notice of removal
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`unambiguously establish federal jurisdiction.”10 The Eleventh Circuit has held that
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`evidence attached to an opposition to a motion to remand can be considered in cases
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`removed under 28 U.S.C. § 1446(b)(1).11 Notably, however, “the jurisdictional facts that
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`support removal must be judged at the time of the removal.”12 Defendants received the
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`demand letters prior to removal, and thus the Court will consider them in determining
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`the amount in controversy.
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`DISCUSSION
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`Removal jurisdiction exists where the court would have original jurisdiction over
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`the action.13 This Court has original jurisdiction over diverse parties “where the matter
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`in controversy exceeds the sum or value of $75,000.”14 The party seeking removal must
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`9 Response to Motion to Remand, Exhibit B [Docs. 11-1].
`10 Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007).
`11 Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 774 (11th Cir. 2010); see also Sierminski v. Transouth Fin.
`Corp., 216 F.3d 945, 949 (11th Cir. 2000) (“While it is undoubtedly best to include all relevant evidence in
`the petition for removal and motion to remand, there is no good reason to keep a district court from
`eliciting or reviewing evidence outside the removal petition.”).
`12 Id.
`13 28 U.S.C. § 1441(a).
`14 28 U.S.C. § 1332(a).
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`3
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`Case 3:20-cv-00133-CAR Document 18 Filed 04/23/21 Page 4 of 6
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`present facts establishing its right to remove by a preponderance of the evidence.15 “In
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`shouldering this burden, a removing defendant ‘is not required to prove the amount in
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`controversy beyond all doubt or to banish all uncertainty about it.’”16 Rather, the
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`defendant may satisfy its burden by showing either that it is “facially apparent from the
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`pleading itself that the amount in controversy exceeds the jurisdictional minimum,” or
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`that there is “additional evidence demonstrating that removal is proper.”17 Punitive
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`damages “must be considered” when determining the jurisdictional amount in
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`controversy in diversity cases.18 And “[s]ettlement demand letters that ask for damages
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`exceeding $75,000 are evidence that may be submitted by the removing party and
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`considered by courts for purposes of determining whether diversity jurisdiction
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`exists.”19
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`A demand letter must contain sufficient facts for defendants to evaluate the
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`claim.20 “Indeed, not every demand letter is persuasive in determining the amount in
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`controversy. A demand letter devoid of facts enabling the receiver to evaluate the claim
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`15 Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010).
`16 Lambeth v. Peterbilt Motors Co., No. 12-0169-WS-N, 2012 WL 1712692, at *2 (S.D. Ala. May 15, 2012)
`(quoting Pretka, 608 F.3d at 754).
`17 Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (citations omitted).
`18 Holley Equip. Co. v. Credit All. Corp., 821 F.2d 1531, 1535 (11th Cir. 1987).
`19 Deal v. Evangelical Lutheran Good Samaritan Soc'y, No. 6:14-CV-7-ORL-28KRS, 2014 WL 12618704, at *2
`(M.D. Fla. Apr. 25, 2014); see AAA Abachman Enters., Inc. v. Stanley Steemer Int'l, Inc., 268 Fed.Appx. 864,
`866 (11th Cir. 2008).
`20 Mick v. De Vilbiss Air Power Co., No. 6:10-cv-1390-Orl-28GJK, 2010 WL 5140849 (M.D. Fla. Dec. 14, 2010);
`Deal, 2014 WL 12618704, at *2.
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`4
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`Case 3:20-cv-00133-CAR Document 18 Filed 04/23/21 Page 5 of 6
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`may be considered nothing more than mere posturing.”21 To determine whether the case
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`meets federal jurisdictional requirements, “courts may use their judicial experience and
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`common sense.”22
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`Defendants have met their burden in this case. Plaintiff’s demand letters and
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`claim for punitive damages establish the amount in controversy exceeds $75,000.23 The
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`demand letters in this case do not constitute posturing. Plaintiff’s attorney provided
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`detailed calculations showing that Plaintiff sustained $56,726.60 to $74,046.63 in
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`damages, including the cost of replanting the blueberry bushes, lost profits from
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`blueberry sales, and the cost of soil restoration.24 Plaintiff’s attorney also stated that
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`damages would be “substantially compounded” by “punitive elements” and requested
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`first $500,000 and then $480,000.25 Moreover, Plaintiff states in her Complaint that the
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`Aerial Specialists helicopter pilot showed “conscious indifference to consequences”
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`sufficient for an award of punitive damages under O.C.G.A. § 51-12-5.1(b) when he
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`“continuously emitt[ed] powerful herbicides for several passes before correcting
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`course.”26 In light of these facts and using judicial experience and common sense, the
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`Court finds this case meets the amount in controversy minimum for diversity
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`jurisdiction.
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`21 Id.
`22 Roe, 613 F.3d at 1062.
`23 Response to Motion to Remand, Exhibit A and Exhibit B [Docs. 11-1 and 11-2].
`24 Id.
`25 Id.
`26 Plaintiff’s Amended Complaint, ¶¶ 9, 11 [Doc 17].
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`Case 3:20-cv-00133-CAR Document 18 Filed 04/23/21 Page 6 of 6
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`CONCLUSION
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`As set forth above, the Court finds that Defendant has established by a
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`preponderance of the evidence that the amount in controversy in this case exceeds
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`$75,000.00. Thus, Plaintiff’s Motion to Remand [Doc. 9] is DENIED. The stay of
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`discovery authorized in this case is hereby LIFTED.
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`SO ORDERED, this 23rd day of April, 2021.
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`s/C. Ashley Royal
`C. ASHLEY ROYAL, SENIOR JUDGE
`UNITED STATES DISTRICT COURT
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`6
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