TIM LEONARD, District Judge
On June 24, 2005, plaintiff filed this action in the District Court of Oklahoma County, Oklahoma seeking "actual and punitive damages in excess of $10,000" due to defendant's alleged defamation. Defendant, which was served on June 27, 2005, removed the action to this court on July 27, 2005, alleging that the court has diversity jurisdiction. Diversity jurisdiction requires that the parties be citizens of different states and that the amount in controversy exceed "the sum or value of $75,000, exclusive of interest and costs. . . ." 28 U.S.C. § 1332(a). Defendant, as the party seeking to invoke this court's jurisdiction, has the burden of establishing that the statutory requirements for such jurisdiction have been met. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001).
In its Notice of Removal, defendant notes that the correct party defendant is ADP, Inc., a Delaware corporation with its principal place of business in New Jersey.
There is no dispute that plaintiff and defendant are residents of different states; at issue here is whether the jurisdictional amount has been met. "The amount in controversy is ordinarily determined by the allegations of the complaint, or, where they are not dispositive, by the allegations in the notice of removal." Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863 (1995). Defendant contends the allegations of plaintiff's Petition are sufficient to establish the jurisdictional amount because plaintiff seeks punitive damages. In its Notice of Removal, defendant parrots the language of Oklahoma's punitive damages statute in support of its conclusion that "it is clear that Plaintiff seeks to recover, and a jury could award, damages in an amount in excess of $75,000." Notice of Removal at ¶ 7.
This matter is before the court on plaintiff's motion to remand. Plaintiff argues that the court lacks subject matter jurisdiction because defendant has not established that the amount in controversy exceeds $75,000.00. In response, defendant counters that "Plaintiff's punitive damages claim, by itself and as a matter of statutory law, must be treated as a claim for at least $100,000." Defendant's Response to Plaintiff's Motion to Remand at 2. The court, however, disagrees with defendant's analysis as it rests upon a fundamental misreading of Oklahoma's punitive damages statute. Defendant appears to argue that the monetary caps contained in 23 O.S. § 9.1[ 23-9.1] represent the minimum amounts a jury could award as punitive damages, rather than the statutory maximums they are. If the court were to accept defendant's rationale, any state court petition requesting punitive damages would be per se removable without any factual basis. Federal courts, however, are courts of limited jurisdiction and it is defendant's burden "to set forth, in the notice of removal itself, the ` underlying facts supporting [the] assertion that the amount in controversy exceeds [the jurisdictional amount].'" Laughlin, 50 F.3d at 873 ( quoting Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992)) (emphasis in Laughlin). In this case, neither the Petition nor the Notice of Removal sets forth facts from which the court can determine the jurisdictional amount has been met. There is no attempt to quantify the dollar amount of the alleged injury to plaintiff's business reputation or to present any facts concerning plaintiff's claim; rather, defendant seeks removal based on speculation about what a jury might award. There is simply no way for the court to ascertain based on either the Petition or the Notice of Removal that there is more than $75,000.00 in controversy with respect to plaintiff's claim. Both the requisite amount in controversy and the existence of diversity "must be affirmatively established on the face of either the petition or the removal notice." Laughlin, 50 F.3d at 873. See also Martin, 251 F.3d at 1291 n. 4. As "there is a presumption against removal jurisdiction," Laughlin, 50 F.3d at 873, this court cannot assume that the jurisdictional amount exists.
Section 1447(c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Defendant has not established that this court has subject matter jurisdiction over this action. Therefore, remand to state court is required. Plaintiff's Motion for Remand (Docket No. 12) is therefore GRANTED. This matter is REMANDED to the District Court of Oklahoma County, Oklahoma. The Clerk of Court is directed to mail a certified copy of this Order to the Clerk of the District Court of Oklahoma County, Oklahoma.
It is so ordered.