Waters et al v. Electrolux Home Products, Inc.
Filing
32
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND AND SCHEDULING BRIEFING ON DEFENDANT'S MOTION TO DISMISS: Denying 16 Motion to Remand; MOTION to Dismiss filed by Electrolux Home Products, Inc. ; Set/Reset Deadlines as to 9 MOTION to Dismiss .( Responses due by 5/11/2015, Replies due by 5/26/2015.) Signed by Senior Judge Frederick P. Stamp, Jr on 4/27/15. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GLORIA WATERS and WILLIAM HALL,
on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
Civil Action No. 5:13CV151
(STAMP)
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND AND
SCHEDULING BRIEFING ON DEFENDANT’S MOTION TO DISMISS
I.
Procedural History
This class action was initially filed in the Circuit Court of
Brooke County, West Virginia.
The plaintiffs, Gloria Waters and
William Hall, claim that the defendant, Electrolux Home Products,
Inc.’s, front-loading washing machines are defective because the
machines accumulate mold and mildew and are unfit for their
essential purpose.
The plaintiffs makes the following claims and
requests for relief in their complaint: (1) the defendant violated
the West Virginia Consumer Credit and Protection Act (“WVCCPA”);
(2) the defendant breached an express warranty; (3) the defendant
breached an implied warranty of merchantability; (4) the defendant
was unjustly enriched; (5) declaratory relief, that the defendant
state that its washing machines have the defect complained of; (6)
injunctive relief, that the defendant cease and desist making the
defective washing machines; and (7) attorneys’ fees and costs.
The defendant removed the case to this Court.
answer, the defendant filed a motion to dismiss.
plaintiffs filed a motion to remand.
In lieu of an
Thereafter, the
Upon request of the parties,
this Court deferred ruling on the motion to dismiss until after an
order was issued regarding the motion to remand, and, further,
stayed discovery in this action.
The motion to remand is fully
briefed and ripe for review.
II.
Facts
In its notice of removal, the defendant makes the following
arguments for meeting the $5,000,000.00 threshold required by the
Class
Action
Fairness
Act
(“CAFA”):1
(1)
it
would
cost
the
defendant $50,000,000.00 to shut down the factory that makes the
front-loading washers because washers are bought eighty percent of
the time with a companion dryer, thus, ceasing to make the frontloading washers would also mean ceasing to make the accompanying
dryers and make the factory unprofitable; (2) the defendant sold
4,200 front-loading washers to retailers and distributors in West
Virginia between 2006 and 2013, which was an accumulated price of
over $3,000,000.00; and 911 between 2000 and 2005, adding over
$600,000.00, thus, this would go into the cost of damages because
the plaintiffs have asked that the defendant replace all frontloading washers of the affected class (a total of $3,800,000.00);
(3) even if only one out of five consumers purchased their washers
1
28 U.S.C. § 1332(d), et. seq. (2012).
2
in the surrounding 55-mile radius of West Virginia, that alone
would put the amount in controversy over $5,000,000.00; and (4)
attorneys’ fees should be included in the calculation, at thirtythree percent of the damages, because the WVCCPA provides for
attorneys’ fees for any claim brought under it for “illegal,
fraudulent, or unconscionable conduct.”
The plaintiffs make four arguments why their motion to remand
should be granted.
First, the plaintiffs argue that the defendant
has not shown that the plaintiffs’ injunctive relief exceeds CAFA’s
statutory requirement.
The plaintiffs argue that they are not
asking that the defendant’s factories be shut down or that they be
forced to stop selling washers and dryers.
Rather, the plaintiffs
contend that they are asking that the defendant be required to stop
selling front-load washers that contain a design defect known to
the defendant in West Virginia. The plaintiffs thus argue that the
defendant has not met its burden because it has not offered a
valuation of the cost of those measures.
Second, the plaintiffs argue that the defendant has not shown
that the plaintiffs’ claims for monetary damages exceeds CAFA’s
statutory requirement.
The plaintiffs contend that the affidavit
offered by the defendant includes retailers and distributors who
were sold the front-load washing machines, however, the plaintiffs’
class does not include retailers and distributors but only those
persons who own a washing machine for “personal, family, or
3
household
purposes.”
Thus,
the
plaintiffs
argue
that
the
defendant’s valuation of the monetary damages is speculative and
should be disregarded.
Further, the plaintiffs claim that the
defendant has more consumer purchasing information than what has
been provided to this Court and that the defendant has not provided
that information because it does not support removal.
Third, the plaintiffs contend that the defendant has used
sales from other states that are speculative because it has not
shown how many of those sales actually went to West Virginia
residents.
Further, the plaintiffs argue that any sales before
2006 should not be used because they are beyond the applicable
statute of limitations.
Finally, the plaintiffs assert that the
defendant’s calculation of possible attorneys’ fees, which the
defendant estimated at one-third of the damages it calculated from
units sold to distributors and retailers, is also erroneous because
it is based on the erroneous damages calculation.
Further, the
plaintiffs contend that under the WVCCPA, attorneys’ fees should be
deemed costs and thus not be considered.
In its response, the defendant contends that the plaintiffs
have
not
contested
that
the
defendant
would
also
have
to
discontinue the sale of certain dryers, but has only contested the
defendant’s argument that the factory would have to be shut down.
Further, the defendant asserts that the plaintiffs are engaging in
“post hoc” narrowing of their class definition to only stop sales
4
in West Virginia on “certain models” (which the defendant argues
has not been defined and thus includes all front-loading washers),
which should not be considered by this Court.
Finally, the
defendant notes that the factory in question would only have a
twenty percent remaining output if all front-loading washers and
their accompanying dryers were no longer made.
The defendant then asserts that it has shown that the sales to
retailers and distributors, plus the sales in surrounding states,
make the total of compensatory damages over $3,800,000.00.
The
defendant argues that it can use wholesale and retailer sales to
show consumer product sale values. Further, the defendant contends
that it has at least shown that a majority of the machines they
used in their calculation of damages in the notice of removal were
sold in West Virginia and that retailers/wholesalers only buy as
many machines as they will sale.
Additionally, the defendant argues that the plaintiffs’ class
definition includes all sales of front-loading washers to West
Virginia residents. Thus, the defendant argues that the plaintiffs
cannot disclaim the defendant’s use of sales to surrounding states
because the named plaintiffs themselves bought their machine in
Steubenville,
Ohio,
which
bolsters
the
defendant’s
argument.
Further, the defendant reiterated that less than five percent of
the sales in the surrounding five states needed to be sold to West
5
Virginia residents in order to meet the $5,000,000.00 amount in
controversy threshold.
Moreover, the defendant contends that the plaintiffs cannot
assert in their complaint that the statute of limitations should be
tolled because of concealment by the defendant but then argue that
sales prior to 2006 should not be used in calculating the amount in
controversy.
Additionally, the defendant argues that product
registration forms and consumer complaints, despite the plaintiffs’
contention, do not provide an accurate estimate of the number of
machines sold to West Virginia residents because only a small
fraction of consumers actually complete or submit them.
Finally,
the defendant reiterated its argument that attorneys’ fees should
be used in calculating the amount in controversy.
The plaintiffs filed a reply, in which they argue that the
plaintiffs
have
not
changed
their
class
definition
and
the
defendant is still exaggerating the changes that would need to
occur in order to fix the problem with the defective machines.
In
a footnote, the plaintiffs suggest that this could be as easy as
adding a $20.00 component or spending an extra $20.00 per machine
in order to ensure that machines are not defective.
The plaintiff
asserts that if adding $20.00 per machine, the defendant would have
to sell 250,000 machines to West Virginia residents to meet the
amount in controversy.
6
The plaintiffs also argue that the defendant has reiterated
the same speculative and overly broad data about retail/wholesale
sales compared to actual consumer purchases by persons within the
plaintiffs’ class.
The plaintiffs further contend that the same
argument the defendant uses for using out-of-state sales in its
computation can be made for the contrasting position that in-state
sales to out-of-state persons also occur.
Thus, some of the sales
made from a West Virginia retailer/wholesaler could have been made
to an out-of-state buyer.
The plaintiffs also distinguish the two
Illinois cases cited by the defendant and argue that those cases
contained far more reliable and extensive evidence than that
provided by the defendant.
Finally, the plaintiffs assert that attorneys’ fees are too
speculative
to
calculate
because
the
defendant
is
using
its
speculative compensatory damages determination and also has failed
to (1) address the fact that the Aetna2 factors would be applied
and (2) the awarding of attorneys’ fees is discretionary under the
WVCCPA.
A supplemental memorandum was filed by the defendant to bring
to the Court’s attention two recent decisions that it believes
support its opposition to the motion to remand:
Dart Cherokee
Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 n.1 (2014)
2
Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 196, 342
S.E.2d 156, 162 (1986).
7
and Roa v. TS Staffing Servs., Inc., No. 2:14-CV-08424-ODW, 2015 WL
300413 (C.D. Cal. Jan. 22, 2015).
on
Dart
Cherokee,
courts
presumption to CAFA cases.
plaintiffs’
reliance
on
The defendant argues that based
should
not
apply
an
anti-removal
Thus, the defendant asserts that
such
a
presumption
is
incorrect.
Accordingly, the defendant contends that it has offered enough
evidence to survive a motion to remand.
Based on the analysis that follows, this Court finds that the
plaintiffs’ motion to remand should be denied.
III.
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
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.
8
28 U.S.C. § 1332(d)(6).
“No antiremoval presumption attends cases invoking CAFA, which
Congress
enacted
to
facilitate
actions in federal court.”
(citation omitted).
adjudication
of
certain
class
Dart Cherokee, 135 S. Ct. at 554
Thus, “a defendant’s notice of removal need
include only a plausible allegation that the amount in controversy
exceeds the jurisdictional threshold.
Evidence establishing the
amount is required by § 1446(c)(2)(B) only when the plaintiff
contests, or the court questions, the defendant’s allegation.” Id.
The burden of establishing the $5,000,000.00 jurisdictional
threshold amount in controversy rests with the defendant as the
plaintiffs have contested the defendant’s allegations regarding
removal.
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.
The Supreme Court
recently assumed, without deciding, that the section of the removal
statute that contains the preponderance standard also applies to
removals under CAFA. See Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S.Ct. 547, 554 n.1 (2014) (assuming without deciding
that Sections 1446(c)(2) and 1446(c)(2)(B) apply to cases removed
under section 1332(d)(2), and that removal is proper if the amount
9
in controversy exceeds $5,000,000.00, the amount specified in
section 1332(d)(2)).
The well-settled test in the United States Court of Appeals
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.
IV.
Discussion
In their motion to remand, the plaintiffs only contend that
the $5,000,000.00 CAFA requirement is not met.
The parties’
arguments regarding the amount in controversy cover the three types
of relief requested in the plaintiffs’ complaint:
monetary, and attorneys’ fees.
injunctive,
This Court will review those three
in turn.
A.
Injunctive Relief
The plaintiffs argue that their request for injunctive relief
does not require the defendant to shut down its factories or to
stop selling the washer and dryers in question.
Rather, the
plaintiffs assert that they are requesting that the defendant stop
selling defective washers in West Virginia that would likely only
require a $20.00 component to fix the machines.
10
The plaintiffs
contend that the defendant has failed to show that such a fix is
not possible or that with such a fix, the amount in controversy
would be met.
On the other hand, the defendant asserts that the plaintiffs
have made a broad claim in their complaint that the defendant must
cease making the washing machines.
The defendant argues that if
required to stop making the washing machines, it would also have to
cease making the companion dryers.
Thus, the defendant contends
that it would be forced to shut down a factory because only twenty
percent of production output would be left.
1.
Request for Relief: Cease and Desist
The
plaintiffs’
complaint
seeks,
in
pertinent
part,
the
following injunctive relief:
“Grant
appropriate
relief,
including,
without
limitations, an order that requires orders [sic]
Electrolux to:
i. Cease and desist from the sale and
manufacture of the defective Washing Machines;
. . .
iii. Establish an appropriate program, at
Electrolux’s sole expense, to inspect, repair,
and replace the Washing Machines[.] . . .”
ECF No. 1-4 at 22, ¶ E.
The plaintiffs clearly seek, as relief,
that the defendant would cease and desist from manufacturing the
defective washing machines.
The plaintiffs do scale back their
request by stating that the request applies to “the defective
Washing Machines.” However, the plaintiffs do not specify in their
11
request that the defendant be required to stop such actions only in
West Virginia.
Further, the third request, that a program for
repair and replacement be implemented, tends to go against the
plaintiffs’ claim that the defendant may only be required to expend
$20.00
per
machine.
The
defendant
would
have
to
shut
down
operations until a proper remedy was found, which may only cost
$20.00, and then make that change to all existing allegedly
defective washing machines and any that had not been sold yet.
Further, this cost would be expended on all future production.
Accordingly, this Court finds that the injunctive relief may not be
as broad as the defendant has suggested but certainly is not as
narrow as the plaintiffs have suggested.
Given this finding, the Court will review the declaration of
Shawn Hayes (“Hayes”), the Fabric Care Product Line Manager for the
defendant, that was filed with the notice of removal (“notice of
removal affidavit”).
In the notice of removal affidavit, Hayes
states that if the defendant had to shut down its front-load
washing machine and dryer factory for one year, the fixed costs
would be approximately $50,000,000.00.
This Court has just found that even with the plaintiffs’
suggestion that a small fix may make the washing machines nondefective, the factory would likely still shut down for some time
period to implement the changes suggested by the plaintiff and
ensure
that
defective
machines
12
were
not
distributed.
The
plaintiffs have not contested Hayes’ estimation of how much it
would cost to shut down the factory for one year. See Bartnikowski
v. NVR, Inc., 307 F. App’x 730, 738 (4th Cir. 2009) (finding that
where the plaintiffs fail to provide contradictory evidence of a
figure provided by the defendant, the Court may accept such a
figure as accurate).
Given the estimation provided by Hayes, even
if the factory were shut down for only one month, the fixed costs
would be approximately $4,100,000.00.
On top of this estimation,
the cost of making a $20.00 change per machine, already distributed
or otherwise, and the cost of implementing a program, would need to
be added to the cost of the plaintiffs’ requests for injunctive
relief.
number
Thus, this Court must now address whether or not the
of
machines
sold
to
West
Virginians
supplied
by
the
defendant should be used for this Court’s determination of whether
the amount in controversy has been met when the additional cost of
$20.00 per machine and implementation of a program is considered.
2.
Request for Relief: Repair Program and Repairs
In the notice of removal affidavit, Hayes states that between
2006 and 2013, the defendant sold 4,200 front-load washing machines
to retailers and distributors for sale and distribution in West
Virginia.
Further, Hayes asserts that between 2000 and 2005,
Electrolux sold 911 front-load washing machines to retailers in
West Virginia.
The plaintiffs argue that this determination does
not coincide with the plaintiffs’ class definition provided in the
13
complaint and thus the figures are speculative.
The plaintiffs
assert that the defendant should have used product registrations or
complaint records instead of the numbers provided in the notice of
removal affidavit.
Additionally, the plaintiffs argue that any
data prior to 2006 should not be used to compute the amount in
controversy as it is outside of the statute of limitations.
In response, the defendant provided another Hayes affidavit
(“response affidavit”) in which Hayes states that “retailers and
distributors only purchase as many washing machines from Electrolux
as they expect to sell to consumers.”
ECF No. 18-1 at 4.
Further,
Hayes states that a small number of consumers complete product
registrations or complaint forms and thus, this record would be
much more speculative than the records provided in the notice of
removal affidavit.
Id. at 4-5.
This Court notes that it may
consider such an affidavit as “[c]ourts have observed that the
propriety of treating later-filed documents as amendments to a
notice of removal depends on the content of the notice of removal
and the record as a whole.”
Carter v. Monsanto Co., 635 F. Supp.
2d 479, 487 (S.D. W. Va. 2009) (citing USX Corp. v. Adriatic Ins.
Co., 345 F.3d 190, 206 n.12 (3d Cir. 2003); Buell v. Sears, Roebuck
& Co., 321 F.2d 468, 471 (10th Cir. 1963)). The response affidavit
is used to clarify the notice of removal affidavit.
In the plaintiffs’ complaint, the class is described as: “All
persons and entities in the State of West Virginia who own a
14
Washing
Machine
purposes.”
primarily
for
personal,
ECF No. 1-4 at 9, ¶ 16.
family,
or
household
As stated previously, the
plaintiffs argue that the defendant’s data is speculative and
should not be used. However, this Court finds that the defendant’s
data, as to its sales made in West Virginia, may be used as an
estimate of how many machines would fall within the plaintiffs’
purported class.
In Bartnikowski, the Fourth Circuit compared two CAFA cases,
Strawn v. AT&T Mobility LLC, 530 F.3d 293 (4th Cir. 2008), and
Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir. 2006), to find
that removal was improper based on the defendant’s speculative
assumption that all persons in the plaintiffs’ purported class had
worked “five hours of overtime a week.” Bartnikowski, 307 F. App’x
at 738.
The Fourth Circuit noted that the defendant’s use in
Strawn of the fact that 58,800 consumers in West Virginia were
automatically enrolled in a roadside assistance program after the
trial period was different than the records provided in Miedema.
Id. (citing Strawn, 530 F.3d at 294-95.
had
provided
a
“guess
extrapolated
In Miedema, the defendant
from
the
fact
that
[the
defendant] had received a total of 2,493 product registrations from
Florida consumers.”
Id. (citing Miedema, 450 F.3d at 1332).
In this case, the records provided by the defendant are more
closely related to the evidence provided by the defendant in Strawn
than the evidence provided in Bartnikowski and Miedema.
15
Here, the
defendant
has
provided
information
regarding
the
number
of
retailers and distributors who sold front-load washing machines in
West Virginia. Further, the defendant has couched such evidence in
its averment that retailers and distributors only buy machines that
they can then resell to consumers.
Such a measure is not as
speculative or a mere guess, which likely would have been the case
had the defendant used the means the plaintiffs had suggested such
as consumer complaint forms or product registrations (which were
specifically cited in Bartnikowski by way of its analogy to the
facts in Miedema).
Thus, this Court finds that such a measurement
can be used for washing machines within West Virginia.
This Court also finds that the plaintiffs’ assertion regarding
the applicability of the statute of limitations is without merit.
The plaintiffs address the statute of limitations, and the tolling
of the statute of limitations in their complaint.
¶¶ 43-48.
that:
Specifically, the plaintiffs state in their complaint
“The statute of limitations has been tolled by Electrolux’s
[actions] . . . .
Electrolux is estopped from relying on any
statute of limitations in defense of this action.”
48.
Id. at 17-18,
Id. at ¶¶ 47-
Thus, the plaintiffs may not now rely on an argument that they
asserted
was
specificity.
inapplicable
in
their
Strawn, 530 F.3d at 298.
complaint,
without
any
As such, sales prior to
2006 may be used in computing the amount in controversy in this
action.
16
This Court also notes that the defendant has provided numbers
for sales in a radius of at least 55 miles of the West Virginia
border. The plaintiffs argue that this too is speculative although
the plaintiffs themselves purchased their washing machine from a
retailer in Ohio.
However, as this Court will find below, even
without the possible out-of-state sales, the amount in controversy
is met.
Given all of the above, if all washing machines that were sold
to retailers and distributors within West Virginia (5,111) required
at least a $20.00 fix, as the plaintiffs have suggested, the total
amount
would
be
$102,220.00.
Further,
the
plaintiffs
requested a program for the implementation of such a fix.
have
Thus, a
fairly conservative view of the possible injunctive relief, given
the plaintiffs’ requests in the complaint, would be more than
$4,202,220.00
(which
does
not
include
any
costs
of
an
implementation program).
B.
Monetary Damages
Hayes states in his notice of removal affidavit that the total
estimated retail price paid for machines sold in West Virginia was
approximately $3,800,000.00. Given the amount of injunctive relief
(over
$4,000,000.00),
and
this
Court’s
finding
regarding
the
defendant’s evidence of sales within West Virginia, the amount in
controversy would certainly exceed the $5,000,000.00 threshold if
monetary damages are taken into account.
17
Thus, the defendant has
met its burden in proving, by a preponderance of the evidence, that
the amount in controversy exceeds $5,000,000.00.
C.
Attorneys’ Fees
Although this Court has found that the $5,000,000.00 threshold
has been met without the consideration of attorneys’ fees, this
Court will review the use of attorneys’ fees, as an alternative
finding.
The plaintiffs assert that the determination of possible
attorneys’ fees would be too speculative.
plaintiffs’
WVCCPA
claim,
and
this
However, given the
Court’s
findings
above,
attorneys’ fees are not speculative.
Although this determination would still require an analysis
pursuant to the factors set out in Aetna,3 other courts have found
that the use of attorneys’ fees may be appropriate when based on a
statutory provision.
Jones v. Capital One Bank (USA), N.A., Civil
Action No. 6:09cv00994, 2009 WL 3335350 at *3 (S.D. W. Va. Oct. 15,
2009) (“[A]ttorney fees are included in calculating the amount in
controversy because the West Virginia statute expressly provides
3
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the
legal service properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the undesirability of the case; (11)
the nature and length of the professional relationship with the
client; and (12) awards in similar cases.
18
for them.”).
However, where the statute allows the discretionary
award of attorneys’ fees, attorneys’ fees “are not necessarily
included” in a determination of the amount in controversy.
White
v. JP Morgan Chase Bank, N.A., Civil Action No. 5:13cv52, 2013 WL
3187082 at *4 (N.D. W. Va. June 20, 2013).
The WVCCPA states the following regarding attorneys’ fees:
In any claim brought under this chapter applying to
illegal, fraudulent or unconscionable conduct or any
prohibited debt collection practice, the court may award
all or a portion of the costs of litigation, including
reasonable attorney fees, court costs and fees, to the
consumer. On a finding by the court that a claim brought
under this chapter applying to illegal, fraudulent or
unconscionable conduct or any prohibited debt collection
practice was brought in bad faith and for the purposes of
harassment, the court may award to the defendant
reasonable attorney fees.
W. Va. Code § 46A-5-104 (2012).
The West Virginia Supreme Court
has held that attorneys’ fees under the WVCCPA should only be
awarded where there has been “egregious conduct.” Chevy Chase Bank
v. McCamant, 512 S.E.2d 217, 227 (W. Va. 1998).
In their complaint, the plaintiffs describe the defendant’s
actions as “immoral, unethical, unscrupulous and substantially
injurious to consumers.”
ECF No. 1-4 at 18, ¶ 53.
The plaintiffs
further describe the defendant as being “deceptive, misleading, and
unfair.”
Id. at ¶ 58.
Moreover, the plaintiffs describe the
defendant’s instructions to remedy the alleged defect of the
washing machines as “startling” and unsafe, and suggest a danger to
children.
Id. at 14-15.
Such descriptions are those which could
19
arise to “egregious conduct” and thus would likely lead to the
assignment
of
attorneys’
fees.
Thus,
the
consideration
of
attorneys’ fees would also be considered in meeting the amount in
controversy
threshold
and
could
be
used
to
bolster
such
a
determination if this Court’s findings as to other damages were
found to be too broad.
As such, this Court finds that the defendant has shown by a
preponderance of the evidence that the amount in controversy
exceeds $5,000,000.00, exclusive of interests and costs.
V.
Conclusion
Based on the analysis above, this Court finds that the
plaintiffs’ motion to remand is DENIED.
Thus, this Court will
consider the defendant’s motion to dismiss after it has been fully
briefed.
The plaintiffs are thus DIRECTED to file a response, if
necessary, to the defendant’s motion to dismiss on or before May
11, 2015. The defendant is DIRECTED to file a reply, if necessary,
on or before May 26, 2015.
Further, discovery in this case will
remain STAYED until this Court reaches a decision regarding the
defendant’s motion to dismiss.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
20
DATED:
April 27, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
21
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