LaFollett et al v. Gunderson et al
Filing
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MEMORANDUM OPINION AND ORDER Granting Plaintiffs' 6 Motion to Remand to Ohio Co Court, this case is DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 5/8/13. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER LaFOLLETT,
MARY BETH LaFOLLETT and
A.C.L., a minor who sues by
his mother and next friend,
Mary Beth LaFollett,
Plaintiffs,
v.
Civil Action No. 5:13CV44
(STAMP)
CHARLES GUNDERSON and
STAN KOCH & SONS TRUCKING,
INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ MOTION TO REMAND
I.
Background
On March 7, 2013, the plaintiffs, Christopher LaFollett, Mary
Beth LaFollett, and their minor child, filed a claim against the
defendants, Charles Gunderson (“Gunderson”) and Stan Koch & Sons
Trucking, Inc. (“Koch Trucking”), in the Circuit Court of Ohio
County West Virginia, as a result of an automobile accident.
The
plaintiffs are residents of Wheeling, Ohio County, West Virginia.
The plaintiffs allege that defendant Gunderson resides in Glenwood,
Iowa.
The plaintiffs further allege that defendant Koch Trucking,
which is organized under the laws of Minnesota, is a corporation
with its principal place of business in Golden Valley, Minnesota.
In their complaint, the plaintiffs state that on or about
October 3, 2012, on Interstate 70 East in Wheeling, West Virginia
a truck driven by defendant Gunderson negligently collided with
another automobile.
The plaintiffs contend that this collision
resulted in a chain reaction, which caused another automobile to
strike the automobile driven by plaintiff Christopher LaFollett.
Plaintiff Mary Beth LaFollett was allegedly a passenger in this
vehicle at the time of the accident.
At the time of the collision,
defendant Gunderson was supposedly acting within the course and
scope of his employment with defendant Koch Trucking.
Christopher
LaFollett
and
Mary
Beth
LaFollett
Plaintiffs
are
seeking
compensation for their injuries, medical bills, damage to their
vehicle, and damages for loss of consortium.
The couples’ minor
child is seeking damages for loss of parental consortium.
After receiving the plaintiffs’ complaint, the defendants
removed this action to this Court on the basis of diversity of
citizenship, pursuant to 28 U.S.C. § 1332.
The defendants contend
that this Court has jurisdiction because the amount in controversy
exceeds $75,000.00 and the action is between citizens of different
states.
The plaintiffs then filed a motion to remand.
In support of
their motion to remand, the plaintiffs state that the defendants
have failed to produce any evidence demonstrating that the amount
in controversy exceeds $75,000.00.
The complaint contains no
allegation as to the amount of damages, and the plaintiffs contend
that this Court cannot deny remand based on the fact that the
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complaint contains allegations of permanent injury, and other
damages allegations. The defendants did not file a response to the
plaintiffs’ motion.1
For the reasons set forth below, this Court
grants the plaintiffs’ motion to remand.
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.
Federal
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
the
amount
in
controversy
exceeds
$75,000.00,
exclusive
of
interests and costs pursuant to 28 U.S.C. § 1332(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.
Id.
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
1
Despite the defendants failure to respond, this Court will
address the plaintiffs’ motion to remand on the merits of the
motion. This Court will not merely grant the motion as unopposed,
because the plaintiffs’ motion to remand challenges this Court’s
subject matter jurisdiction.
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controversy.
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.
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.
Chase v. Shop ‘N Save Warehouse
Foods, 110 F.3d 424, 428 (7th Cir. 1997).
III.
Discussion
The plaintiffs contend that the defendants have not satisfied
their burden of establishing federal jurisdiction as they have
failed to produce any evidence demonstrating that the amount in
controversy exceeds $75,000.00.
The plaintiffs argue that while
their complaint makes allegations of possible permanent injuries,
and other damages allegations, this cannot satisfy the defendants’
burden of proof.
As stated above, the burden of establishing 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.
This Court has consistently applied the “preponderance of evidence”
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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 v. Harry’s Mobile Homes, Inc., 861 F. Supp. 22, 23
(S.D. W. Va. 1994).
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.
Id.
After carefully reviewing the complaint and the plaintiffs’
memoranda, this Court concludes that the defendants have not
satisfied their burden of proof that, at the time of the filing of
the
complaint,
$75,000.00.
the
plaintiffs’
damages
may
have
exceeded
As this Court has noted a number of times, removal
cannot be based upon speculation and “bare allegation[s] that the
amount in controversy exceeds $75,000.”
See Asbury-Casto v.
Glaxosmithkline, Inc., 352 F. Supp. 2d 729, 731 (N.D. W. Va. 2005);
and Haynes v. Heightland, 2006 U.S. Dist. LEXIS 19194 *3 (N.D. W.
Va. 2006).
With regard to claims for which the plaintiffs make no
specific damages demand, a removing defendant must present actual
evidence
that
the
amount
in
controversy
is
exceeded;
simple
conjecture will not suffice. 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
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of its own to support [the claimed amount in controversy, but]
rather, has only presented a conjectural argument”).
Here, the defendants failed to include any evidence or make
any allegations in their notice of removal concerning the amount in
controversy,
besides
the
general
bare
plaintiffs’ claims exceed $75,000.00.
assertion
that
the
Further, the plaintiffs’
complaint does not contain any allegation concerning the amount of
damages that the plaintiffs seek, let alone an allegation that
those damages exceed $75,000.00.
The plaintiffs are correct in
that allegations of possible permanent injuries, future damages,
attorneys’ fees and the like, cannot satisfy the defendants’ burden
of establishing that the amount in controversy has been met.
As
stated above, the defendants bear the burden of producing actual
evidence when such claims do not make a specific damages demand.
The defendants have not produced any such evidence.
Therefore,
this Court cannot find that the defendants have met their burden of
proof
of
establishing
that
the
plaintiffs’
damages
exceed
$75,000.00.
IV.
Conclusion
For the aforementioned reasons, the plaintiffs’ motion to
remand (ECF No. 6) is hereby GRANTED.
Accordingly, it is ORDERED
that this case be REMANDED to the Circuit Court of Ohio County,
West Virginia.
It is further ORDERED that this case be DISMISSED
and STRICKEN from the active docket of this Court.
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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.
Pursuant to Federal Rule of
Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
May 8, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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