Fiddler v. AT&T Mobility, LLC, et al., 2008 WL 2130436, No. 08 C 416 (N.D. Ill. May 20, 2008)
In Fiddler, the defendants, AT&T Mobility, M-Qube, Inc. and Verisign, Inc., were sued in Illinois state court for allegedly making unauthorized charges for mobile telephone services. The defendants wanted to remove the case to federal court, but they weren’t sure if it was clear from the face of the complaint that the $5,000,000 amount in controversy was met.
If you want to listen to Bon Jovi’s Livin’ On a Prayer while you read, click here.
Failing to take a removing defendant’s burden of proof seriously, their lawyer told them to relax and quoted the famous Bon Jovi song, saying “take my hand, we’ll make it I swear!” But instead of providing sufficient evidence regarding the amount in controversy in the notice of removal, the defendants were livin’ on the prayer for relief in the complaint and advanced only vague arguments in support of the jurisdictional amount.
They focused on the fact that the complaint sought compensatory and punitive damages, as well as attorneys’ fees. They also argued that the complaint contained allegations that the defendants had “profited significantly” and “collect[ed] significant sums of money in unauthorized mobile content charges.” Thinking they were half way there, the defendants also noted that the prayer sought “broad and far-reaching relief.”
Fiddler, apparently not a fan of big hair rock, moved to remand on the ground that the defendants’ vague allegations regarding the amount in controversy did not provide sufficient evidence to establish by a preponderance of the evidence that the amount in controversy exceeded $5,000,000. Fiddler also argued that the allegations in the complaint suggested that the amount in controversy actually was less than $5,000,000 because his billing records indicated that the improper charges were less than $100 and even if there were 10,000 members of the proposed class, each member would need to have $500 in total damages for the jurisdictional amount to be met.
In opposing the motion to remand, the defendants belatedly attempted to provide additional evidence in the form of sworn statements by their officers. Their lawyer told them “we gotta hold on ready or not…you live for the fight when it’s all that you’ve got!” But the United States District Court for the Northern District of Illinois shut them down, noting that this evidence was not provided in the initial notice of removal and also that evidence of total sales during the relevant time period “brings Defendants no closer to establishing the amount in controversy…since Defendants have not provided even an estimation of the portion of total sales implicated by Fiddler’s claims.”
The court also held that there was no way to assess the potential value of punitive damages without some indication from the defendants of the potential compensatory damages and remanded the case to state court.