Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 1 of 5
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
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`MIDDLE DISTRICT OF GEORGIA
`ATHENS DIVISION
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`DIANE CARTEY
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`)
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`Plaintiff,
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`NUTRIEN AG SOLUTIONS &
`AERIAL SPECIALISTS, INC.,
`Defendants.
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`i
`; CIVIL ACTION NO.: 3:2020CV00133
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`;
`i
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`PLAINTIFF ’8 MOTION FOR REMAND & STIPULATION OF DAMAGES
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`COMES NOW, DIANE CARTEY, Plaintiff in the above—styled action (hereinafter
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`referred to as Plaintiff CARTEY), and files this Motion for Remand to the Superior Court of
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`Morgan County, along with the accompanying Stipulation of Damages and the supplemental brief
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`in support thereof, and shows this Honorable Court as follows:
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`1. On August 19, 2020, Plaintiff CARTEY filed a Complaint in the Superior Court of
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`Morgan County, Civil Action File No. 2020—SU-CA~182, regarding the destruction of her
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`blueberry garden due to an aerial misapplication of herbicidal compounds then under the
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`control of Defendant NUTRIEN AG SOLUTIONS and AERIAL SPECIALISTS, INC,
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`alleging a number of state law claims, including those arising from O.C.G.A. § 51—25(2)
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`(employer liability for contractors in inherently dangerous activities); and O.C.G.A. § 51—
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`9-9 (aerial trespass).
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`2. On October 30, 2020, Plaintiff CARTEY submitted an Amended Complaint that clarified
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`the element of punitive damages included in this amount. The punitive damages were
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`intended for inclusion in the original complaint, but were absent from its form as filed with
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 2 of 5
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 2 of 5
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`the Superior Court of Morgan County. The Amended Complaint was timely filed to clarify
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`the punitive element alleged, and specifically avoided using the verbiage “in addition to”
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`in order to make clear that the punitive element was not tacked on as an additional
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`consideration but was calculated as part of the initially filed amount.
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`On December 3, 2020, Defendant filed its Notice of Removal to remove the case to this
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`Honorable Court based on diversity of citizenship.
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`For diversity jurisdiction to be proper, not only must all parties to the suit be completely
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`diverse in citizenship, but Defendant must also prove that the amount in controversy
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`exceeds the jurisdictional threshold of $ 75,000. 00.
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`. As originally stated in the Complaint filed August 19, 2020,
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`the damages arising in
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`connection with this present matter fail to meet that figure, as they are $74,999.00 or less.
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`As restated in the Amended Complained filed October 30, 2020, the figure—which was
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`clarified as including a punitive elementH—remained unchanged at $ 74,999.00 or less.
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`. Defendant’s Notice of Removal, which contains no factual allegations of any kind, failed
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`to meet its burden to show that the amount in controversy properly situates this case in the
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`jurisdiction of this Honorable Court by exceeding the S 75,000. 00 threshold. Defendant’s
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`Notice of Removal includes either a mistaken belief or an intentional attempt to mislead
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`by stating that the Amended Complaint references punitive damages separately from the
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`expenses and damages initially alleged (despite the fact that 1] 9 ofthe Amended Complaint
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`lists the statute providing for punitive damages in the exact same list as the other statutory
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`authorities for the damages sought). Other than this patently false assertion, the only
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`backing for Defendant’s claims in the Notice of Removal is found in the conclusory and
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`entirely unsubstantiated statement that this Honorable Court can “exercise its judicial
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 3 of 5
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 3 of 5
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`experience” to contravene the complaint’s specific wordng by “determin[ing] the amount
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`in controversy exceeds $75,000.00.”
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`. Plaintiff CARTEY reiterates the initial amount of 3 74,999. 00 and counters the
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`Defendant= 5 Notice of Removal, which contains no factual showing that the actual damages
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`amount exceeds the sum sought. Because Defendant did not furnish any evidence to the
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`contrary, there are no specific points for Plaintiff CARTEY to refute in so doing. To this
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`end, Plaintiff CARTEY offers the stipulation below as a good—faith indication of the
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`damages award sought:
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`STIPULATION OF DAMAGES
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`As stated in the originalhtfilerl complaintfor the ongoing matter, PlaintiffDiane Cartey
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`has snflererl no damages beyond $74, 999. 00. Aecortlingbl, Plaintiff Cartey will neither
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`seek nor accept any damages award in excess thereof Even J a jury award were to be
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`made that exceeded this amount upon the case’s remand to the Superior Court of
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`Morgan Conant, any amount in excess thereof would not be accepted by PIaintWCartey.
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 4 of 5
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 4 of 5
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`WHEREFORE, Plaintiff prays for the following:
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`a) That this Honorable Court disregard Defendant’s Notice of Removal in its entirety
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`and refuses to grant the sought removal of the ongoing proceeding; and
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`b) That this Honorable Court, in fiJll recognition of the above Stipulation of Damages,
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`remand this proceeding to the Superior Court of Morgan County.
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`Respectfully submitted this 21 st day of December, 2020.
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`[SIGNATURE PAGE FOLLOWS]
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 5 of 5
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`Case 3:20-cv-00133-CAR Document 9 Filed 12/21/20 Page 5 of 5
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`2%;STOPHERL. WEEMS
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`42M
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`Attorney for Plaintiff
`State Bar No.: 745716
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`525 Gaines School Road
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`Athens, Georgia 30605
`Phone: (706) 546-0854
`Fax:
`(706) 546—0864
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