Tamburin v. Hawkins et al
MEMORANDUM OPINION AND ORDER Granting 5 Motion to Remand: Civil Action remanded to Circuit Court of Ohio Co., WV; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 2/13/13. (cert. copy of this order, Judgment Order, and Docket Sheet forwarded to Ohio County Circuit Court - See 15 Remand Letter)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ERICA A. TAMBURIN, individually
and as guardian, mother and
next friend of R.R., a minor,
Civil Action No. 5:12CV79
CANDY F. HAWKINS,
CABELA’S WHOLESALE, INC.,
a foreign corporation,
a/k/a CABELA’S CATALOG, INC.,
a/k/a CABELA’S.COM, INC. and
JOHN DOE, a corporation and/or
business and/or governmental entity,
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND
The plaintiffs, both residents of Ohio County, West Virginia,
filed this civil action in the Circuit Court of Ohio County, West
Virginia seeking damages due to alleged injuries suffered by both
plaintiffs in an automobile accident.
Defendant Candy F. Hawkins
(“Hawkins”) filed a timely notice of removal and removed this civil
action to this Court on the basis of diversity jurisdiction
pursuant to 29 U.S.C. §§ 1332(a) and 1441(a).
In support of her claim of diversity jurisdiction, defendant
Hawkins asserts that the amount in controversy of $75,000.00,
exclusive of interest and costs, is satisfied as evidenced by
requests for admission served upon the defendants by the plaintiffs
which ask the defendants to admit that the plaintiffs have been
injured in excess of $75,000.00, and that complete diversity
In response, the plaintiffs filed a motion to remand, wherein
they ask this Court to remand this civil action to the Circuit
Court of Ohio County because the defendant Hawkins has failed to
show that the amount in controversy has been satisfied.
Hawkins responded to the plaintiffs’ motion for remand.
Cabela’s Wholesale, Inc. (“Cabela’s”) did not respond, and the
plaintiffs filed no reply to defendant Hawkins’ response.
reasons that follow, this Court will grant the plaintiffs’ motion
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.
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
interests and costs pursuant to 28 U.S.C. § 1332(a).
See Mulcahey v. Columbia Organic Chems. Co., Inc.,
It seems to be agreed that complete diversity exists in this
case. The plaintiffs are residents of West Virginia, defendant
Hawkins is a resident of Pennsylvania, and defendant Cabela’s
Wholesale, Inc. is a Delaware corporation with its principal place
of business in Nebraska.
29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly
construed, and if federal jurisdiction is doubtful, the federal
court must remand.
Although courts strictly construe the statute granting removal
jurisdiction, Doe v. Allied Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993), the court is not required “to leave common sense
behind” when determining the amount in controversy.
Harry’s Mobile Homes, 861 F. Supp. 22, 24 (S.D. W. Va. 1994).
the amount in controversy is not apparent on the face of the
plaintiff’s complaint, the federal court must attempt to ascertain
the amount in controversy by considering the plaintiff’s cause of
action as alleged in the complaint and any amendments thereto, the
notice of removal filed with a federal court, and other relevant
materials in the record.
14C Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 3725 at 73 (3d ed. 1998).
However, the court is limited to examining only evidence that was
available at the moment the petition for removal was filed.
v. Shop ‘N Save Warehouse Foods, 110 F.3d 424, 428 (7th Cir. 1997).
Timeliness of motion for remand
Initially, defendant Hawkins asks this Court to deny the
plaintiffs’ motion for remand as untimely filed 40 days after
removal of this civil action to this Court.
In support of this
argument, defendant Hawkins cites 28 U.S.C. § 1447, which provides
for procedure following removal generally, and argues that under
§ 1447(c), all motions for remand must be filed “within 30 days
after the filing of the notice of removal.”
This Court finds that
plaintiffs’ motion for remand are misplaced and unfounded.
Motions challenging removal can be premised on two different
justifications for remand (1) a lack of subject matter jurisdiction
and (2) a procedural removal defect outside of a lack of subject
See Ellenburg v. Spartan Motors Chassis,
§ 1447(c), all motions asking for remand “on the basis of any
defect other than lack of subject matter jurisdiction must be made
However, motions seeking remand based upon a
lack of subject matter may be filed at any time prior to final
judgment in the case.
28 U.S.C. § 1447(c).
The plaintiffs here
argue in their motion for remand that the defendants have not made
the requisite showing that the amount in controversy is satisfied.
jurisdiction, and the 30-day limitation set forth in § 1447 is not
applicable to the plaintiffs’ motion for remand.
Amount in controversy
The burden of establishing that the amount in controversy
exceeds $75,000.00, exclusive of interests and costs, rests with
the party seeking removal.
Mulcahey, 29 F.3d at 151.
has consistently applied the “preponderance of evidence” standard
to determine whether a defendant has met its burden of proving the
amount in controversy.
When no specific amount of damages is set
forth in the complaint, the defendant bears the burden of proving
that the claim meets the requisite jurisdictional amount. Mullins,
861 F. Supp. at 23.
In such circumstances, the Court may consider
the entire record before it and may conduct its own independent
inquiry to determine whether the amount in controversy satisfies
the jurisdictional minimum.
Defendant Hawkins asserts that she has met her burden of
proving that the requisite amount in controversy exists in this
Defendant Hawkins’ main assertion in this regard is based
upon requests for admission given to defendant Hawkins by the
plaintiffs prior to removal.
In these requests for admission, the
plaintiffs ask defendant Hawkins to make a number of admissions
which would result in the defendants’ acknowledgment that the
plaintiffs are entitled to $450,000.00 in damages.
assert that these requests for admission serve as sufficient
controversy in this civil action is well over the $75,000.00
required for federal jurisdiction.
Hawkins has presented no evidence to show, by a preponderance of
the evidence, that the amount in controversy is satisfied in this
They point out that no settlement demands or offers in
excess of the $75,000.00 have been made in this case. Further, the
plaintiffs note that, in response to their requests for admission,
defendant Hawkins denied that the plaintiffs suffered damages in an
amount in equal to or in excess of the jurisdictional amount.
After review of the pleadings, as well as the entire record in
this case, this Court agrees with the plaintiffs that defendant
Hawkins has failed to satisfy her burden with regard to the amount
As the plaintiffs note, in cases where the
complaint does not set forth any specific amount of damages sought,
as is the case here, the defendants must present actual evidence
that the amount in controversy is exceeded; simple conjecture will
See Bartnikowski v. NVR, Inc., 307 F. App’x 730, 737
(4th Cir. 2009) (unpublished) (Finding that amount in controversy
not shown when defendant “has put forth no evidence of its own to
support [the claimed amount in controversy, but] rather, has only
presented a conjectural argument”).
The defendants have failed to
present any such evidence.
The only evidence presented by defendant Hawkins as to the
amount in controversy is the requests for admission offered by the
plaintiffs, which ask the defendant to admit that damages have been
Accordingly, defendant Hawkins relies on nothing more
than speculative and conclusory logical jumps that, because the
plaintiffs asked the defendant to admit damages over a certain
amount, the plaintiffs must be seeking at least that much.
plaintiffs’ claims, nor any statement by the plaintiffs which could
be said to serve as evidence of their own valuation of their
insufficient to avoid remand.
See McWha v. Otway, 5:06cv164, 2007
U.S. Dist. LEXIS 60246 (N.D. W. Va. Aug. 15, 2007).
defendant Hawkins has failed to meet her burden, and this matter
must thus be remanded to the Circuit Court of Ohio County.
For the reasons stated above, the plaintiffs’ motion to remand
Accordingly, this matter is hereby REMANDED to the
Circuit Court of Ohio County, West Virginia.
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 Ohio County, West Virginia.
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
February 13, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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