Willoughby v. Kroger et al
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on December 7, 2017. (sfc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BETTY W. WILLOUGHBY,
CASE NO. 6:17-cv-00067
KROGER, ET AL.,
JUDGE NORMAN K. MOON
This case is before the Court on a motion to remand. Plaintiff Betty Willoughby filed suit
against Defendants Kroger and related entities (collectively referred to as “Defendant”) in the
Circuit Court for the City of Lynchburg. (Dkt. 1-2). The complaint’s ad damnum clause alleges
damages of $74,900 for personal injuries sustained when Plaintiff slipped and fell on
Defendant’s premises. Upon conducting discovery, Defendant learned through interrogatories
that Plaintiff alleged $32,132.06 in special damages, as well as other future damages. Alleging
this new information supported diversity jurisdiction, Defendant filed a notice of removal. (Dkt.
1-1). Plaintiff now moves to remand the case, contending that the amount pled in the ad damnum
clause controls. Because I find Defendant has not proved bad faith, I will remand the case.
I. Legal Standard
A defendant can remove a civil action to federal court if the court would have had
original jurisdiction over the matter. 28 U.S.C. § 1441(a). Federal courts possess original subject
matter jurisdiction when (1) the amount in controversy exceeds $75,000, exclusive of interest
and costs, and (2) the parties’ citizenship is completely diverse. 28 U.S.C. § 1332. Regarding the
amount in controversy, “unless the law gives a different rule, the sum claimed by the plaintiff
controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 288 (1938); 28 U.S.C. § 1446 (c)(2).
When a plaintiff seeks to remand a case removed to federal court, the defendant has “the
burden of demonstrating the existence of federal jurisdiction.” Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008). “If, by a preponderance of the evidence, the
defendants prove that the totality of circumstances indicates that the plaintiff is seeking to
recover more than $75,000, the court should deny the plaintiff’s motion to remand.” Ford-Fisher
v. Stone, No. CIV A 206CV575, 2007 WL 190153, at *3 (E.D. Va. Jan. 22, 2007) (citing
Schwenk v. Cobra Mfg. Co., 322 F. Supp. 2d 676, 678 (E.D. Va. 2004)). “Because removal
jurisdiction raises significant federalism concerns, [courts] must strictly construe removal
jurisdiction.” Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994)
(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). “If federal jurisdiction is
doubtful, a remand is necessary.” Id. (citing In re Business Men's Assur. Co. of America, 992
F.2d 181, 183 (8th Cir. 1993)).
Plaintiff’s argues in her motion to remand that her answers to Defendant’s interrogatories
did not provide a sufficient basis to disregard the amount pled in her complaint. Notwithstanding
Plaintiff’s argument, Defendant counters that the Court should invoke a “totality of the
circumstances” analysis and find Plaintiff’s damages exceed $75,000.
Plaintiff’s Ad Damnum Clause Prevents the Case from Exceeding the Amount in
Controversy Threshold for Diversity Jurisdiction.
In Virginia, the ad damnum clause in a plaintiff’s complaint caps the amount of his or her
potential recovery. Brown v. Wal-Mart Stores, Inc., No. 5:13CV00081, 2014 WL 60044, n.2
(W.D. Va. Jan. 7, 2014) (quoting Kent Sinclair & Leigh B. Middleditch, Jr., VIRGINIA CIVIL
PROCEDURE § 3.2(H) (5th ed. 2008)); Hamilton v. Bruce, 552 F. Supp. 649, 650–51 (W.D. Va.
1982). Such a cap on recovery can prevent a case from satisfying the amount in controversy
requirement and thwart removal. Id. at *3. Defendant contends that Plaintiff’s answers to
interrogatories conflict with Plaintiff’s original ad damnum clause enumerating damages of
$74,900.1 (Dkt. 1-2, 1-3; dkt. 8 at 2). Specifically, Defendant reasons that the $32,132.06 listed
as special damages, when multiplied by two and a half times, exceeds $75,000. Id.
An ad damnum clause made in good faith is sufficient to prevent removal when it caps
plaintiff’s potential recovery below the requisite amount in controversy for diversity jurisdiction.
Brown, 2014 WL 60044, at *2. In Brown, the defendant removed a case filed in state court with a
complaint containing a $70,000 ad damnum clause. Id. at *3. During initial settlement
discussions, the plaintiff articulated itemized medical expenses of $62,386.77 and demanded
$200,000 to settle the suit. Id. at *2. The defendant argued that the amount pled in the ad
damnum clause was done in “bad faith” in order to avoid removal. Id. at *3. Countering
defendant’s contention, the plaintiff’s counsel and paralegal testified at an evidentiary hearing
that the “they did not value [plaintiff’s] case over $50,000,” and indeed had later attempted to
settle the case for $45,000. Id. The court found the testimony to be evidence that plaintiff’s ad
damnum clause “was not done in bad faith.” Id. Moreover, the court found assurances from
plaintiff’s counsel, that “he [would] not amend his state court complaint to raise the ad
damnum . . . ,” made remand appropriate. Id.
Defendant wrongly posits that Brown stands for the proposition that it is “the burden of
the plaintiff to establish that the sum demanded in the initial pleading was made in ‘good faith.’”
Plaintiff’s answers to Defendant’s interrogatories are an “other paper” sufficient to be
used for the purposes of ascertaining whether the case is removable. See 28 U.S.C. § 1446 (b)(3),
(c)(3)(A). The relevant interrogatories include interrogatory number four, stating Plaintiff
“incurred a total of $31,626.91 in medical expenses, $35.15 in mileage expenses, and $470 for
yard mowing . . . ,” and interrogatory number three, detailing the specifics of Plaintiff’s injuries,
surgery, and current ongoing limitations due to the injury. (Dkt. 1-3).
(Dkt. 8 at 2). Plaintiff rightly counters with the longstanding rule that the burden of establishing
jurisdiction post-removal rests upon Defendant. (Dkt. 10 at 2). See Carson v. Dunham, 121 U.S.
421, 425 (1887) (“As [defendant] was the actor in the removal proceeding, it rested on her to
make out the jurisdiction of the [court].”). Defendant’s burden notwithstanding, Plaintiff has still
provided evidence that the amount alleged in the ad damnum clause was done in good faith.
Although it was stated at the November 13, 2017 remand hearing that Plaintiff made a
settlement offer of $150,000, Plaintiff states she currently “has no plan to amend the Complaint
to seek a sum greater than [$74,900.00].” (Dkt. 10 at 3). Moreover, Plaintiff’s counsel stated
before the Court and in his brief that Plaintiff “has determined, with the assistance of counsel,
that the $42,767.94 she is seeking that is in excess of her special[ damages] of $32.132.06 is an
amount sufficient to compensate her for her injuries, pain, potential future medical expenses, or
other damages.” Id. Plaintiff further stipulated at the hearing that, under the facts she is currently
aware of, she will not amend her state court complaint to seek damages above the amount in
controversy threshold.2 These statements, like the assurances in Brown, are demonstrative that
the ad damnum clause was made in good faith. See also Animal Care Ctr. of Salem, Inc. v.
Thompson, No. 7:06CV00250, 2006 WL 1288516, at *1 (W.D. Va. May 10, 2006) (finding an
ad damnum clause amount of “less than $75,000” was made in good faith).
The “Totality of the Circumstances” Does Not Warrant a Finding of Jurisdiction
Notwithstanding Plaintiff’s ad damnum clause, Defendant argues that the “totality of the
circumstances” indicates the value of Plaintiff’s claim is over $75,000. (Dkt. 8 at 2–3 (citing Lien
v. H.E.R.C. Prod., Inc., 8 F. Supp. 2d 531, 534 (E.D. Va. 1998); Ford-Fisher v. Stone, No. CIV
In the event that upon remand Plaintiff does amend her complaint to seek damages above
the $75,000 amount in controversy threshold, Defendant could again seek removal under 28
U.S.C. § 1446(b)(3).
A 206CV575, 2007 WL 190153, at *1 (E.D. Va. Jan. 22, 2007)). In Lien, the district court found
“the wording of the Complaint [indicating potentially $100,000 in damages], the plaintiff’s
settlement letter [requesting $80,000] and the plaintiff’s statements to [the] Court, contradict[ed]
the plaintiff’s assertion that the value of [the] litigation [was] less than $75,000.00.” Lien, 8 F.
Supp. 2d at 534. In Ford-Fisher, the district court found that in spite of a $25,000 ad damnum
clause, the plaintiff’s pursuit of a $300,000 settlement offer, her counsel’s admission “that the
plaintiff was prepared to file an amended motion for judgment with an increased ad damnum
clause” to seek $450,000 in damages, and “her refusal to stipulate that her damages will not
exceed $75,000,” all supported defendant’s assertion that the case exceeded the amount in
controversy requirement. Ford-Fisher, 2007 WL 190153, at *3.
The totality of the circumstances does not support a finding of jurisdiction in this case.
Unlike the circumstances in Lien and Ford-Fisher, here Defendant has not provided sufficient
evidence that Plaintiff intends to seek an amount in excess of $75,000. First, Defendant’s
multiplication of Plaintiff’s enumerated special damages by two and half times is speculative and
not demonstrative that jurisdiction exists. In addition, Plaintiff’s previous settlement offer of
$150,000 is now qualified by her assertions that she will not seek an amount greater than the
$74,900 ad damnum clause. As referenced above, Plaintiff stipulated to the Court at the remand
hearing that, based upon the facts she is currently aware of, she will not amend her complaint to
increase the ad damnum clause. (See also Dkt. 10 at 3 (stating Plaintiff “has no plan to amend the
Complaint to seek a sum greater than” $74,900.00)). Rather, Plaintiff acknowledges the cap on
her potential damages, and finds the difference between her incurred expenses and the ad
damnum cap “sufficient to compensate her for her” damages.3 (Dkt. 10 at 4). Defendant has
Defendant’s argument that Plaintiff’s alleged future damages support jurisdiction is
failed to show by a preponderance of the evidence and the totality of circumstances that Plaintiff
is seeking to recover more than $75,000. See Ford-Fisher. 2007 WL 190153, at *3. Therefore,
the Court will remand the case to state court.
Plaintiff is Not Entitled to Recover Costs and Attorneys’ Fees Incurred as a Result
of Defendant’s Removal
Plaintiff seeks to recover her costs and attorney’s fees incurred as a result of Defendant’s
removal under 28 U.S.C. § 1447(c). “An order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C. § 1447(c) (emphasis added). The Fourth Circuit has found bad faith to be a major factor
in determining whether granting attorney’s fees is appropriate. In re Lowe, 102 F.3d 731, 733 n.2
(4th Cir. 1996) (“Even if § 1447(c) empowered us to require the district court [in this case] to
award fees at this juncture, we would decline to do so. There is no evidence of bad faith by either
party.”). Here, the Court finds that, while ultimately unconvincing, Defendant’s arguments in
favor of removal were made in good faith. Moreover, Plaintiff’s recent representations to the
Court that she will not increase her ad damnum clause, under the facts as she understands them,
is not something a “cursory examination would have revealed” when Defendant filed its notice
of removal. Id. (quoting Husk v. E.I. Du Pont De Nemours & Co., 842 F.Supp. 895, 899
(S.D.W.Va. 1994)). Thus, awarding costs and fees would not be appropriate in this case.
likewise not convincing. (Dkt 1-2 at 3). Defendant quotes Forth Circuit precedent holding that
“damages which the plaintiff claims will accrue in the future are properly counted against the
jurisdictional amount if ‘a right to future payments . . . will be adjudged in the present suit.’”
Broglie v. MacKay-Smith, 541 F.2d 453, 455 (4th Cir. 1976).
However, this argument does not address the unique nature of Plaintiff’s ad damnum
clause, which prevents her from recovering more than the jurisdictional amount. The fact that
Plaintiff could request more than the jurisdictional amount is not the test. Rather, the totality of
the circumstances must show that Plaintiff indeed intends to seek an amount above the $75,000
threshold. The evidence before the Court is to the contrary.
Because Defendant has failed to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000, subject matter jurisdiction is lacking. Plaintiff’s motion
to remand will be granted. Plaintiff’s request for costs and attorney’s fees, however, will be
denied. An appropriate Order will issue.
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
and accompanying Order to all counsel of record, to remand the case to the Circuit Court for the
City of Lynchburg, and to remove this case from the Court’s active docket.
Entered this ____ day of December, 2017.
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