Six v. Sweeney
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND RE 4 Motion to Remand denied Signed by Senior Judge Frederick P. Stamp, Jr on 5/8/13. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:13CV3
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
The above-styled civil action was filed in the Circuit Court
of Brooke County, West Virginia.
The complaint seeks damages for
injuries resulting from an automobile accident.
The case was
originally filed on May 18, 2012, and the defendant removed to this
Court based upon diversity jurisdiction pursuant to 28 U.S.C.
§ 1332 on July 12, 2012.
Following this removal, the parties
agreed that removal was untimely under 28 U.S.C. § 1446(b), as the
defendant had been served with the complaint more than thirty days
prior to removal, and the case was remanded by an agreed order for
On January 15, 2013, the defendant removed this case to this
Court for a second time on the basis of diversity jurisdiction,
claiming that the parties are citizens of different states and that
the amount in controversy in the case exceeds $75,000.00, exclusive
of interest and costs.
The defendant now maintains that she has
learned, through settlement demands made by the plaintiff, that the
amount in controversy in the case is more than $75,000.00.
she is now entitled to remove the case at this time.
jurisdiction is lacking both because the defendant cannot remove
this case for a second time after it was originally agreed that
removal was untimely, and because the defendant has failed to
jurisdictional amount of $75,000.00. The defendant did not respond
to the plaintiff’s motion for remand.1
For the reasons that
follow, this Court must deny the plaintiff’s motion for remand.
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).
28 U.S.C. §§ 1446(b)(1) & (3), removal of a civil action is timely
only if it is filed “within 30 days after the receipt by the
While the defendant did not respond to the motion to remand,
because the motion challenges this Court’s subject matter
jurisdiction over this civil action, this Court must consider the
merits of the plaintiff’s motion to remand.
Based upon the
assertions in the defendant’s notice of removal, this Court finds
that remand is not appropriate, as this civil action was properly
removed pursuant to 28 U.S.C. §§ 1332, 1441 and 1446.
defendant, through service or otherwise, of a copy of the initial
pleading . . .” or, “if the case stated by the initial pleading is
not removable, a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or
has become removable.” With regard to cases removed pursuant to 28
U.S.C. § 1332, “[i]f the case stated by the initial pleading is not
removable solely because the amount in controversy does not exceed
[the jurisdictional amount], information relating to the amount in
controversy in the record of the State proceeding, or in responses
to discovery, shall be treated as an ‘other paper’ under subsection
28 U.S.C. § 1446(c)(3)(A).
The party seeking removal bears the burden of establishing
federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co.,
Inc., 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
Mullens v. Harry’s Mobile Homes, 861 F. Supp. 22, 24
(S.D. W. Va. 1994). When 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.
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.
Chase v. Shop ‘N Save Warehouse
Foods, 110 F.3d 424, 428 (7th Cir. 1997).
In her motion to remand, the plaintiff largely argues that the
defendant is precluded from removing this matter again after the
incorporates by reference the arguments included in her original
motion for remand, which focus on her assertion that the defendant
failed to present evidence to show by a preponderance of the
evidence that the amount in controversy in this case exceeds
$75,000.00. After review of the plaintiff’s motions for remand, as
well as the defendant’s notice of removal, this Court finds that
the both of these arguments must fail.
Timeliness of removal
Initially, the plaintiff argues without support that, because
the defendant’s original notice of removal was deemed untimely and
this case was remanded on that basis, her second notice of removal
must also be untimely.
The plaintiff argues that, under 28 U.S.C.
§ 1446(b), the defendant was required to remove the case within
thirty days of receiving service of process, and because service
was received by Ms. Sweeney on May 19, 2012, she failed to timely
remove, and “this case may not be removed.” However, this argument
ignores the exception to this general thirty day limitation.
exception, also contained in § 1446(b) and further developed with
regard to removal based upon diversity jurisdiction in § 1446(c),
allows a defendant to remove a case which is not immediately
removable because the amount in controversy cannot be said to
exceed $75,000.00 based upon the allegations in the complaint,
“within thirty days after receipt by the defendant . . . of a copy
of . . . other paper from which it may be first ascertained that
the case is one which is or has become removable.”
§ 1446(b)(3). “[I]nformation relating to the amount in controversy
in the record of the State proceeding, or in responses to discovery
shall be treated as an ‘other paper’ under subsection (b)(3).”
U.S.C. § 1446(c)(3)(A).
The defendant’s most recent notice of removal asserts that the
plaintiff’s complaint failed to plead a specific amount of damages,
and prior to December 19, 2012, the plaintiff had disclosed no
information suggesting that the amount in controversy exceeded
However, the defendant argues that on December 19,
2012, prior to the defendant’s disclosure of her relevant insurance
policy limits, the plaintiff offered a settlement demand for the
defendant’s policy limits.
As the defendant’s policy limit is
plaintiff’s demand by disclosing those policy limits, to which the
plaintiff responded on December 27, 2013 by reiterating her policy
At this time, the plaintiff also claimed that she
has undergone back surgery for injuries related to the accident
which forms the basis for her complaint, and will need life-long
Accordingly, the defendant argues that she
received an “other paper” clarifying for the first time the amount
in controversy when she received the settlement demand letter for
$100,000.00 from the plaintiff on December 17, 2012.
thus timely filed on January 15, 2013.
This Court agrees with the defendant that her second notice of
removal in this case was timely filed.
This Court notes that the
complaint in this case makes no damages demand, and that the
plaintiff had previously contested the defendant’s support for her
claim that the amount in controversy exceeded $75,000.00. However,
the plaintiff’s $100,000.00 demand letter received by the defendant
less than one month prior to removal, clearly represents evidence
that the amount in controversy has been satisfied.
has presented no evidence to suggest that this information was
available to the defendant prior to this settlement demand, and has
also failed to present any support for her argument that this
second removal is untimely simply because the defendant’s prior
removal was deemed to be untimely.
Defendant’s burden of establishing the amount in controversy
As noted above, the plaintiff also incorporates by reference
the arguments raised in her original motion for remand, which
assert that the defendant has failed to prove that the amount in
controversy exceeds $75,000.00.
The burden of establishing that
the amount in controversy exceeds $75,000.00 rests with the party
Mulcahey, 29 F.3d at 151.
This Court 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.
The defendant’s basis for her second notice of removal is the
aforementioned policy limits settlement demand which the plaintiff
reiterated even after the defendant disclosed that her policy limit
This Court finds that this settlement demand
clearly establishes, by a preponderance of the evidence, that the
amount in controversy in this case exceeds $75,000.00.
review of the plaintiff’s first motion to remand, this Court does
These arguments are based upon the support for
jurisdiction raised by the defendant in her original notice of
removal, and thus address arguments and bases for removal not
applicable to or relied upon in the second notice of removal.
the previous notice of removal, the defendant had relied simply
upon discovery responses by the plaintiff wherein she declined to
stipulate that she would not seek more than $75,000.00 and declined
to agree that she sought more than that amount. As the defendant’s
current notice of removal is based solely upon the plaintiff’s
unnecessary to address the plaintiff’s arguments regarding other
bases for removal.
For the reasons stated above, the plaintiffs’ motion to remand
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
May 8, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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