## Facts

- Advanced Bionics Corp. manufactured an electrical pulse generator (a neuromodulation device).
- Kenneth A. Harshey had one of the defendants’ pulse generators surgically implanted.
- Harshey alleged the device malfunctioned and subjected him to painful and dangerous electrical shocks, causing severe and permanent injuries.
- Marys N. Harshey (Kenneth’s wife) joined the suit and asserted a loss of consortium claim.
- David N.D. Harshey (Kenneth’s son) joined the suit and asserted a negligent infliction of emotional distress claim.
- Plaintiffs filed the action in Indiana state court (Marion Superior Court).
- Defendants removed the case to the U.S. District Court for the Southern District of Indiana, asserting diversity jurisdiction under 28 U.S.C. § 1332 and alleging that the amount in controversy exceeded $75,000.
- After removal, each plaintiff filed a written stipulation stating that he or she did not seek, demand, and would not accept more than $75,000 in recovery on his or her individual claim.
- In opposing remand, defendants relied mainly on counsel’s statement that, based on counsel’s experience with personal-injury litigation and the complaint’s general descriptions of injury, the jurisdictional amount was met.

## Issues

1. In a removed diversity case with multiple plaintiffs, must the removing defendants show that at least one plaintiff’s individual claim more likely than not exceeds $75,000, rather than combining separate plaintiffs’ claims to reach the threshold?
2. Did defendants provide competent proof sufficient to show, by a preponderance of the evidence, that any plaintiff’s claim exceeded $75,000 at the time of removal?
3. May post-removal stipulations capping individual recovery be considered when evaluating whether the amount in controversy was met at the time of removal, where defendants’ showing is minimal?

## Decision

- The court granted plaintiffs’ motion to remand.
- The case was remanded to Marion Superior Court.
- The court held defendants did not carry their burden to show the jurisdictional amount was satisfied for any individual plaintiff.
- The court rejected any attempt to satisfy the amount in controversy by adding together the three plaintiffs’ separate claims.
- The court treated plaintiffs’ stipulations as probative evidence about the amount in controversy given the complaint’s lack of specific damage allegations and defendants’ thin showing.

## Legal Principles

- The removing party bears the burden of establishing federal subject-matter jurisdiction, including the amount in controversy.
- Separate and distinct claims of multiple plaintiffs generally cannot be aggregated to satisfy the § 1332(a) amount-in-controversy requirement; at least one plaintiff must independently place more than $75,000 in controversy (absent a truly shared, unitary interest).
- When the complaint does not specify damages, the removing defendant must support the jurisdictional amount with competent proof and show by a preponderance of the evidence that the threshold is met; generalized attorney assertions based on litigation experience and broad injury descriptions do not suffice.
- Although jurisdiction is assessed as of the time of removal and later events do not defeat properly established jurisdiction, post-removal stipulations may be considered as evidence of what was actually in controversy at removal when the pleadings are indeterminate and defendants have not otherwise shown the jurisdictional amount.
- If no plaintiff’s claim is shown to exceed $75,000, supplemental jurisdiction under 28 U.S.C. § 1367 does not provide an independent basis to keep the case in federal court.

## Conclusion

Because defendants could not combine the three plaintiffs’ separate claims to reach $75,000 and offered no case-specific, competent proof that any one plaintiff more likely than not had over $75,000 in controversy at removal—while each plaintiff affirmatively stipulated to a $75,000 individual cap—the federal court found diversity jurisdiction unproven and remanded the action to Indiana state court.


Harshey v. Advanced Bionics Corp., No. 1:09-cv-905-DFH-TAB, 2009 WL 3617756 (2009)