Thomack v. West Virginia University Hospitals, Inc.

Filing 16

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND REMANDING CIVIL ACTION TO THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA: It is ORDERED that Plaintiff's 9 Motion to Remand is granted. This matter is REMAND ED to the Circuit Court of Monongalia County, WV. This civil action is dismissed and stricken from the active docket of this Court. The Clerk is directed to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 10/3/13. (cert. copy Cir. Ct. Clerk w/cert. copy of docket sheet) (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER THOMACK,
on behalf of himself and all
others similarly situated,
Plaintiff,
v.

Civil Action No. 1:13CV31
(STAMP)

WEST VIRGINIA UNIVERSITY
HOSPITALS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
AND REMANDING CIVIL ACTION TO THE
CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA
I.

Procedural History and Facts

The plaintiff, Christopher Thomack, filed this civil action in
the Circuit Court of Monongalia County, West Virginia against the
above-named defendant as a class action brought on behalf of a
class of former patients or patient representatives who, within the
last five years, requested medical records from the defendant, West
Virginia University Hospitals, Inc. (“WVUH”), and paid the fees
charged by the defendant to obtain those records.

The plaintiff

alleges that the class members were charged forty cents per page
plus a $10.00 search fee, but received only a compact disc, and not
a paper copy, worth less than $1.00.
Count I claims that the defendant has violated West Virginia
Code § 16-29-1.
forth

certain

The plaintiff contends that this section sets

costs

that

medical

providers

may

recover

from

patients and patient representatives and that WVUH’s fees go beyond
that amount.

The plaintiff asserts that the violative charges,

amounting to $514.40, charged by WVUH affected not only him but all
other patients who had to request medical records within five years
of the filing of this action.
Count II sets forth a violation of public policy claim.

The

plaintiff states that the public policy of West Virginia is that
residents of the state should have access to their own medical
records and thus healthcare providers should encourage residents to
participate in their own medical care.

The plaintiff alleges that

the defendant violated this public policy by overcharging the
plaintiff and others within the class.
Count III is a claim for breach of implied contract against
the defendant.

The plaintiff asserts that by seeking medical care

from the defendant, he entered an implied contract which required
the defendant to document the care the plaintiff received and
provide copies of that documentation.

Because the plaintiff and

other class members sought medical care from WVUH, the plaintiff
asserts

that

the

defendant

breached

the

implied

contract

by

refusing to produce copies of the medical records for a reasonable
fee.
Finally, Count IV is a declaratory judgment request asking the
Court to declare that West Virginia Code § 16-29-1 limits the
amount that WVUH may charge patients, or patient’s representatives,

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for copies of their medical records.

Further, the plaintiff

requests that the Court declare that WVUH is precluded from
charging more than the costs associated with locating the records
beyond the $10.00 search fee authorized by statute.
The defendant then filed a notice of removal in this Court,
stating that this Court has original jurisdiction pursuant to the
Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d).
The plaintiff filed a motion to remand, arguing that his
claims are not removable because the amount in controversy does not
meet the required $5,000,000.00 threshold amount set by CAFA, or,
in the alternative, that this action falls within one of the
exceptions set forth by CAFA.
The plaintiff first contends that the defendant’s use of the
plaintiff’s $514.40 charge for all prospective class members cannot
be used. Rather, the plaintiff argues, every claim is unique as to
the

amount

charged

by

WVUH

and

will

need

to

be

evaluated

individually.
The plaintiff also contends that this case falls within one or
more

of

the

mandatory

exceptions

to

CAFA,

the

“home

exception and/or the “local controversy” exception.

state”

The former

exception requires that two-thirds or more of the members of the
plaintiff class, and the primary defendant(s), are located within
the state in which the action was filed.

The plaintiff contends

that it currently has no way of showing that two-thirds or more of

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the members of the plaintiff class are located within the state of
West Virginia. As to the latter exception, the “local controversy”
exception, the plaintiff asserts that all elements are met except,
however, there has been a failure in proving that two-thirds of the
plaintiff class are located within the state.
Finally, the plaintiff asserts that this Court could grant
remand

under

CAFA’s

discretionary

exception

which

authorizes

federal courts to decline jurisdiction as a matter of discretion.
The plaintiff contends that several of the factors are met, but
again that the greater than two-thirds element requires more
investigation and proof.
The defendant filed an opposition to the plaintiff’s motion to
remand asserting that removal was proper.

The defendant contests

that the amount in controversy is at a minimum $12,955,502.40.

In

making this claim, the defendant cites authorities that allow the
calculation of aggregate damages to consist of the amount of
damages alleged in the complaint of the named plaintiff multiplied
by the total number of potential class members.

Further, the

defendant cited a United States Senate Committee Report regarding
CAFA’s aggregation provisions which stated that federal courts
should err in favor of exercising jurisdiction over the case if
uncertain about what the sum of the amount in controversy would be.
Thus, the defendant contends that the aggregated amount reached by

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using the plaintiff’s sum of $503.401 should be used and multiplied
against the defendant’s statistic that 25,736 persons requested
medical records and paid for them in the past five years.

Thus,

based on that computation, the defendant requests that the motion
for remand be denied.
In response to the plaintiff’s concerns about the calculation,
the defendant notes that the cases that have used these aggregation
amounts, Kearns, Chavis, and Martin, were not relying on specific
allegations as to the value of the plaintiff’s claim. Instead, the
values given were mere averages or damages caps given by the
plaintiff.
Further, in response to the plaintiff’s pleading as to the
exceptions to CAFA, the defendant argues that the plaintiff has not
met his burden as to either mandatory exception. Instead, WVUH has
offered proof that 47.1% of the potential class members are not
West Virginia citizens, defeating the “home state” exception.

In

addition, WVUH contends that the “local controversy” exception is
also defeated because WVUH is a regional healthcare system serving
several states and thus this action would affect not just the state
of West Virginia, and further, this action involves a matter of
national importance.

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The defendant uses the sum of $503.40 which does not include
the $10.00 search fee or the cost of the $1.00 compact disc.
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The plaintiff, in reply, reiterated that WVUH in its response
still fails to quantify the amount in controversy.

The plaintiff

points to the lack of evidence of the actual amount the patients,
or their representatives, were charged.

The plaintiff further

responded by again reviewing the cases Kearns and Chavis; stating
that these cases used specific allegations of value to determine
that the amount in controversy met the CAFA threshold.

Finally,

the plaintiff reasserted his claim that this Court may still grant
discretionary remand because this action is in fact a matter of
state importance rather than of national importance.
Having reviewed the parties’ pleadings and the relevant law,
this Court finds that original jurisdiction does not exist under
CAFA.

Accordingly, the plaintiff’s motion for remand must be

granted.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

The

Class Action Fairness Act (“CAFA”) confers original jurisdiction on
district courts over class actions in which (1) “the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs,” 28 U.S.C. § 1332(d)(2); (2) “any member of a
class of plaintiffs is a citizen of a State different from any
defendant,” id. § 1332(d)(2)(A); and (3) “there are 100 or more

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plaintiff class members,” id. § 1332(d)(5)(B).

West Virginia ex

rel. McGraw v. CVS Pharm., Inc., 646 F.3d 169, 174 (4th Cir. 2011).
The claims of individual class members may be aggregated to meet
the $5,000,000.00 amount in controversy.

28 U.S.C. § 1332(d)(6).

The burden of establishing the $5,000,000.00 jurisdictional
threshold amount in controversy rests with the defendant.

See

Strawn v. AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008)
(concluding that CAFA did not shift the burden of persuasion, which
remains

upon

the

party

seeking

removal).

This

Court

has

consistently applied the “preponderance of evidence” standard to
determine whether a removing defendant has met its burden of
proving the amount in controversy.
United

States

Court

of

Appeals

The well-settled test in the
for

the

Fourth

Circuit

for

calculating the amount in controversy is “‘the pecuniary result to
either party which [a] judgment would produce.’” Dixon v. Edwards,
290 F.3d 699, 710 (4th Cir. 2002) (quoting Gov’t Employees Ins. Co.
v. Lally, F.2d 568, 569 (4th Cir. 1964)).

Accordingly, in this

case, the defendant must show by a preponderance of the evidence
that the pecuniary interest, in the aggregate, of either party is
greater than $5,000,000.00.

Under the statute, “one defendant may

remove the entire action, including claims against all defendants.”
Lowery v. Ala. Power Co., 483 F.3d 1184, 1196 (11th Cir. 2007).
Removal

jurisdiction

is

strictly

construed.

If

jurisdiction is doubtful, the federal court must remand.

7

federal
Mulcahey

v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994).
III.
A.

Discussion

Amount in Controversy
The plaintiff has alleged that the defendant overcharged him

$503.40, after subtracting the finding fee and the $1.00 for the
compact disc cost.
plaintiff

claims

Because of the amount charged by WVUH, the
that

WVUH

has

violated

West

Virginia

Code

§ 16-29-1.
In determining the amount in controversy, this Court looks to
the plaintiff’s complaint. Strawn, 530 F.3d at 298. The plaintiff
does not state in his complaint that the lead plaintiff’s claim is
the average or the maximum charge that a patient, or patient
representative, would be billed.

Instead, the complaint states

only what Mr. Thomack was charged by WVUH individually.
In Kearns and Chavis, the plaintiffs gave an average damage
amount (in the former) and a maximum damage amount (in the latter).
Kearns, No. CV05-5644, 2005 WL 3967998, at *5 (C.D. Cal. Nov. 21,
2005); Chavis, 415 F. Supp. 2d 620, 627 (D.S.C. 2006). Both courts
found that based on the purported number of class members, the
$5,000,000.00 amount in controversy was clearly met.

Id.

In

Kearns, the district court found that the “average of $1,080 per
vehicle” multiplied by the 79,000 CPO cars that were sold by the
defendant dealership, would easily meet the amount at a sum of

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$85,000,000.00.
Chavis

used

a

Kearns, 2005 WL 3967998 at *5.
similar

method

and

found

that

The court in
based

on

the

plaintiffs’ maximum damages number of $50,000.00 per member, and
their assertion that there would be greater than 100 members in the
class, that the final sum of $500,000,000.00 could be used.
Chavis, 415 F. Supp. 2d at 627.
Those cases are clearly distinguishable, however, from this
case where the plaintiff has set forth a specific amount that
accounts for his damages individually.

The plaintiff has made no

claim as to an average damages amount nor as to a maximum amount of
damages sought per class member.

Thus, the defendant’s assertion

that the plaintiff’s damages amount can be used for each class
member provides only a “mere possibility that the requirement could
be met.”

Caufield, 803 F. Supp. 2d 519, 528 (S.D. W. Va. 2011)

(stating that a mere possibility is not enough to give the court
jurisdiction).
Further, the defendant cites the case of Martin.

Martin v.

State Farm Mutual Auto. Ins. Co., No. 3:10-0144, 2010 WL 3259418
(S.D. W. Va. Aug. 18, 2010).

However, that case does not help the

defendant to reach its burden either. In Martin, for instance, the
two plaintiffs sought $100,000.00 each in a wrongful denial of
insurance case and had stated that there would be two sub-classes
of at least 100 members.

Martin, 2010 WL 3259418, at *5.

The

plaintiffs in Martin had argued that the $100,000.00 should not be

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used to conduct the amount in controversy calculation because the
sum for other plaintiffs may be less if a member had underinsured
motorist coverage. Id. The district court noted, however, that it
was unlikely the demand would be less because neither the named
plaintiffs nor similarly situated members of the class had the
underinsured motorist coverage.
court

found

that

remand

Id. at n.2.

should

not

be

Thus, the district

granted

because

the

plaintiffs’ claims of $100,000.00 per named plaintiff could be
imposed to other members of the plaintiff class.

Id. at *5.

On the other hand, in this case, the plaintiff’s damages are
not of the kind that can be easily imposed on other members of the
plaintiff class. Depending on the number of documents a patient or
representative
drastically.

requested,

the

amount

of

damages

could

change

For example, a person who only needed ten pages,

would have been charged the $10.00 finding fee, the $1.00 for the
compact

disc,

and

$4.00

for

distributed to that patient.

the

actual

documents

that

were

The final figure, $15.00, would be

much different than the amount claimed by the plaintiff of $503.40.
Finally, the defendant argues that the Senate Committee Report
that was used in Kearns should be given weight, directing this
Court to err on the side of denying remand.
3967998, at *6 (citing S. Rep. No. 109-14).

Kearns, 2005 WL

However, the court in

Kearns also noted that committee reports should not be given
superior weight to the text of the statute themselves.

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Id. at *4.

The Kearns court noted the previous standard when discussing the
burden placed on the removing party, even though CAFA had not
specifically laid the standard out in the text.

Id.

Further, the

court reiterated that “the Court ordinarily presumes that Congress
acted with knowledge of that precedent” (referring to precedent
that allocated “the burden of proof upon removal and upon motion to
remand to the removing party”). Id. (citing Lorillard v. Pons, 434
U.S. 575, 581 (1978); Gaus v. Miles, 980 F.2d 564, 566-67 (9th Cir.
1992)).
Consequently, the defendant’s argument would actually shift
the burden to the plaintiff and would change the preponderance of
the evidence standard now in place.

Thus, it seems that although

the Kearns court used the Senate Committee Report in its reasoning
for allowing the combined calculations, the implication that the
defendant would like to draw from its use cannot stand because of
its affect on the burden of persuasion placed on the removing
party.
B.

CAFA Exceptions
Because this case can be remanded based on the amount in

controversy element, this Court declines to discuss the CAFA
exceptions that the plaintiff had set forth in his motion to remand
and the defendant addressed in its briefing.

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IV.

Conclusion

For the reasons stated above, the plaintiff’s motion to remand
is GRANTED. This matter is hereby REMANDED to the Circuit Court of
Monongalia County, West Virginia.

It is further ORDERED that this

civil action be DISMISSED and STRICKEN from the active docket of
this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Monongalia County, West Virginia. Pursuant to
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
DATED:

October 3, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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