Zink v. Doe et al

Filing 23

MEMORANDUM OPINION AND ORDER denying 10 Motion to Remand. Signed by District Judge Irene M. Keeley on 5/1/14. (copy to counsel of record via CM/ECF)(rjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARY JEAN ZINK, as Administratrix
ov the Estate of William Henry
Zink, Jr.,
Plaintiff,
v.

//

CIVIL ACTION NO. 5:14CV25
(Judge Keeley)

JOHN DOE, TARGET CORPORATION,
a Minnesota corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]
Pending before the Court is the motion to remand filed by the
plaintiff, Mary Jean Zink (“Zink”). (Dkt. No. 10). For the reasons
that follow, the Court DENIES Zink’s motion.
I. PROCEDURAL HISTORY
On January 22, 2014, Zink sued the defendants, John Doe and
Target Corporation (“Target”)(collectively, “the defendants”), in
the Circuit Court of Ohio County, West Virginia.

The defendants

subsequently removed the action to this Court on February 21, 2014,
in accordance with 28 U.S.C. §§ 1332, 1441, and 1446. (Dkt. No. 1).
On March 19, 2014, Zink filed the instant motion to remand
this case to state court, asserting that the defendants have not
met their burden in establishing that the amount in controversy
exceeds $75,000.
review.

The motion is now fully briefed and ripe for

ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]
II. FACTUAL BACKGROUND

This action arises from an accident that occurred on August
24, 2013 at a Target store located in Ohio County, West Virginia.
Zink alleges that, while shopping at a Target store, her husband,
William H. Zink, JR. (“the decedent”), was struck and knocked down
by shopping carts that were negligently driven into him by a Target
employee. The decedent later died as a result of the injuries he
sustained during that accident.
Zink now seeks to recover the following damages:
a. Physical pain, mental and emotional anguish,
annoyance, inconvenience, and a diminishment of the
ability to function fully and enjoy life suffered by the
decedent;
b. Loss of consortium by Mary J. Zink due to the effects
of the premature death of her husband;
c. Expenses for medical treatment
decedent prior to his death;

rendered

to

the

d. Funeral expenses;
e. Sorrow, mental anguish and solace, including the loss
of society, companionship, comfort, guidance, kindly
offices, and advice, loss of services, care, protection
and assistance suffered by Mary J. Zink as a result of
the death of her husband, William H. Zink, Jr.;
f. Punitive damages in order to punish the Defendants and
deter them and other individuals from engaging in similar
conduct in the future; and

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ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

g. Costs, expenses, and attorney’s fees, including preand post-judgment interest. (Dkt. No. 1).
III. LEGAL STANDARD
A party may remove to federal court any state “civil action
where the matter in controversy exceeds the sum or value of $75,000
. . . and is between citizens of different States.” 28 U.S.C.
§§ 1332(a), 1441(a).

When an action is removed from state court,

a federal district court must determine whether it has original
jurisdiction over the plaintiff’s claims. Kokkonen v. Guardian Life
Ins. Co. Of Am., 511 U.S. 375, 377 (4th Cir. 1994).
courts are courts of limited jurisdiction.

“Federal

They possess only that

power authorized by the Constitution and statute, which is not to
be expanded by judicial decree.”

Id.

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 diversity of citizenship
under 28 U.S.C. § 1332.

When a party seeks removal based upon

diversity of citizenship under 28 U.S.C. § 1332, that party bears
the burden of establishing “the amount in controversy exceeds the
sum or value of $75,000, exclusive of interests and costs, and is
between citizens of different states.” 28 U.S.C. § 1332.

3

ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]
IV. ANALYSIS

The parties do not dispute diversity of citizenship.

Thus,

the only question for the Court to determine is whether the amount
in controversy is met.
In Zink’s motion to remand, she argues that the defendants
cannot meet their burden of proving the amount in controversy. The
defendants respond that, based upon the damages sought in this
case, the amount in controversy exceeds the $75,000 threshold.
In a removal action that premises jurisdiction upon 28 U.S.C.
§ 1332, the defendant bears the burden of establishing that removal
jurisdiction is proper. Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 200 (4th Cir. 2008).

If a complaint “does not allege

a specific amount of damages, the removing defendant must prove by
a preponderance of the evidence that the amount in controversy
exceeds [$75,000].’” Francis v. Allstate Ins. Co., 709 F.3d 362,
367 (4th Cir. 2013) (quoting De Aguilar v. Boeing Co., 11 F.3d 55,
58 (5th Cir. 1993)). In order to meet the preponderance of the
evidence

standard

and

establish

that

removal

is

proper,

“a

defendant must show that it is more likely than not that the amount
in

controversy

exceeds

the

jurisdictional

amount.”

Heller

v.

TriEnergy, Inc., No. 5:12–CV–45, 2012 WL 2740870 (N.D. W. Va. July
9, 2012).
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ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

“The question is not what damages the plaintiff will recover,
but what amount is ‘in controversy’ between the parties. Lanier v.
Norfolk S. Corp., 256 F. App’x 629, 631-32 (4th Cir. 2007) (quoting
Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448-49 (7th
Cir. 2005)). “[T]he test for determining the amount in controversy
in a diversity proceeding is ‘the pecuniary result to either party
which [a] judgment would produce.’” Dixon v. Edwards, 290 F.3d 699
(4th Cir. 2002) (quoting Gov’t Employees Ins. Co. v. Lally, 327
F.2d 568, 569 (4th Cir. 1964)). “The amount in controversy, if not
specified in the complaint, must be determined on the likely
monetary relief that may be granted to the plaintiff if [she]
succeed[s] on all of [her] claims asserted in good faith.” Judy v.
JK Harris & Co. LLC, 2011 WL 4499316 (S.D. W. Va. Sept. 27, 2011)
(Johnston, J.) (citing Landmark Corp., 945 F.Supp. at 936–37 (S.D.
W. Va. 1996); Mullins v. Harry's Mobile Homes, Inc., 861 F.Supp.
22, 24 (S.D. W. Va. 1 994) (citing 14A Charles Alan Wright, et al.,
Federal Practice and Procedure § 3725 at 423–24 (1985))).
“The removability of a case ‘depends upon the state of the
pleadings and the record at the time of the application for
removal. . . .” Francis v. Allstate Insurance Co., 709 F.3d 362,
367 (4th Cir. 2013) (quoting Alabama Great S. Ry. Co. v. Thompson,

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ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

200 U.S. 206, 216 (1906)). In evaluating whether the amount in
controversy has been satisfied, the court may consider:
the type and extent of the plaintiff’s injuries and the
possible
damages
recoverable
therefore,
including
punitive damages if appropriate. The possible damages
recoverable may be shown by the amounts awarded in other
similar cases. Another factor for the court to consider
would be the expenses or losses incurred by the plaintiff
up to the date the notice of removal was filed. The
defendant may also present evidence of any settlement
demands made by the plaintiff prior to removal although
the weight to be given such demands is a matter of
dispute among courts.
Kenney v. Indep. Order of Foresters, No. 3:12-CV-123, 2012 WL
6149171, *2-3 (N.D. W. Va. Dec. 11, 2012) (quoting Watterson v.
GMRI, Inc., 14 F. Supp. 2d 844, 850 (S.D. W. Va. 1997)).
Here, Zink seeks to recover economic damages for hospital and
funeral expenses incurred on behalf of the decedent.

According to

a recent study by the Kaiser Family Foundation, hospital expenses
per inpatient day in West Virginia averaged $1,316 in the year of
2011.

Kaiser Family Foundation, “Expenses Per Inpatient Day”

http://kff.org/other/state-indicator/expenses-per-inpatientday/(2011).

Thus, if the decedent had been hospitalized for the

twelve days prior to his death, the average daily cost for his
hospitalization would likely exceed $15,000, exclusive of costs for
medical tests and physician services.

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ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

Furthermore, according to a Federal Trade Commission study, a
traditional funeral costs between $6,000 and $10,000.
Trade

Comm'n,

“Facts

for

Consumers,”

www.ftc.gov/bcp/edu/pubs/consumer/products/pro19.shtm
2009).

Federal
http://

(Nov.

24,

Thus, a conservative estimate of the economic damages at

issue in this case likely exceeds $25,000.
Zink also seeks to recover for a number of non-economic
damages, including:
• Physical pain suffered by Mr. Zink as a result of his
broken hip for twelve days;
• Mental and emotional anguish suffered by Mr. Zink for
twelve days;
• Annoyance, inconvenience, and a diminishment of the
ability to function fully and enjoy life suffered by Mr.
Zink prior to his death;
• Loss of consortium by Mary J. Zink due to the
disability and subsequent death of her husband; and
• Mrs. Zink’s sorrow, mental anguish and solace,
including the loss of society, companionship, comfort,
guidance, kindly offices, and advice, loss of services,
care, protection and assistance suffered by her.
Non-economic damages, while difficult to quantify, can
make up the bulk of the recovery in a wrongful death case.
Here, the Zink’s were married for over 30 years, which will
likely increase an award for loss of consortium. Further, the
decedent was an outstanding citizen and family man.
7

He was a

ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

U.S. Army veteran, and long-time volunteer of both the Valley
Grove Lions Club and Volunteer Fire Department, and was the
Mayor of Valley Grove for 18 years. He is survived not just by
his

wife,

but

also

numerous

children,

grandchildren, and great-grandchildren.

step-children,

These factors will

likely considerably increase any award of damages in favor of
Zink.
Finally,
punitive

Zink

also

damages.

asserts

Multiple

a

good

courts

faith

have

claim

considered

for
a

plaintiff’s good faith claim for punitive damages in their
amount

in

controversy

calculations.

See

Heller,

2012

WL

2740870 at *10 (noting that the punitive damages played a role
in determining that the action more likely than not involved
more

than

$75,000);

Bryant

v.

Wal-Mart,

117

F.Supp.

2d

5550556-57 (S.D.W.Va. Oct. 20, 2000) (“A good faith claim for
punitive

damages

may

augment

compensatory

damages

in

determining the amount in controversy unless it can be said to
a legal certainty that plaintiff cannot recover punitive
damages in the action.”).
If punitive damages are supported in this action, the
financial

position of

the defendants,

8

including Target’s

ZINK v. DOE

5:14CV25
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 10]

extensive revenue and assets, would become relevant to a
determination of their amount.

Garnes v. Fleming Landfill,

Inc., 413 S.E.2d 897, 909 (W. Va. 1991).

Thus, punitive

damages assessed against the defendants may easily exceed
$75,000. The defendants have therefore adequately established
that it is more likely than not that the jurisdictional amount
is met in this action.
V. CONCLUSION
For the reasons discussed, the Court DENIES Zink’s motion
to remand.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Order to counsel of record.
DATED: May 1, 2014
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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