McDanell v. Precision Pipeline, LLC
Filing
11
MEMORANDUM OPINION AND ORDER GRANTING 6 PLAINTIFF'S MOTION TO REMAND. It is ORDERED that this case be REMANDED to the Circuit Court of Brooke County, West Virginia. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/21/2014. (copy to counsel of record via CM/ECF; copy to Circuit Court of Brooke County via U.S. Mail) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JENNIFER D. McDANELL, as
Administratrix of the Estate
of ROBERT LEON McDANELL,
Plaintiff,
v.
Civil Action No. 5:14CV81
(STAMP)
PRECISION PIPELINE, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
I.
Background
The plaintiff originally filed this action in the Circuit
Court
of
Brooke
County,
West
Virginia.
The
plaintiff,
as
Administratrix for the Estate of her husband, Robert Leon McDanell,
(the “decedent”), asserts claims arising out of decedent’s death
while working a job site selected by the defendant.
The plaintiff
asserts that the working conditions were unsafe and the defendant’s
conduct violated West Virginia Code § 23-4-2.
The defendant removed this action to this Court, based on
diversity of citizenship pursuant to 28 U.S.C. § 1332.
The
plaintiff then filed a motion to remand arguing that the defendant
has failed to establish that the amount in controversy is met. The
plaintiff asserts that the defendant did nothing more than allege
that because the plaintiff alleges an injury resulting in the
fatality
of
the
decedent,
the
amount
in
controversy
exceeds
$75,000.00 exclusive of interest and costs.
The defendant filed a response arguing that the amount in
controversy exceeds $75,000.00 exclusive of interest and costs
based on the numerous types of damages sought by the plaintiff.
The defendant then proceeded to estimate the amount of future
economic loss, funeral expenses, and non-economic losses.
The
estimates as to future economic loss are also provided in an
affidavit attached to the response.
The plaintiff filed a reply arguing first, that this case is
a deliberate intent case, and wage loss, standing alone, is not a
recoverable item of damages in this type of action.
She asserts
that wage loss would only be relevant if the defendant provided
proof
of
wages
that
were
uncompensated
under
the
workers’
compensation system.
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,
interests and costs pursuant to 28 U.S.C. § 1332(a).
2
exclusive
of
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
Id.
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.
Mullins 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
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.
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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
controversy satisfies the jurisdictional minimum.
the
amount
in
Id.
The defendant attempts to establish the amount in controversy
based on the decedent’s lost wages, average funeral costs, and the
fact
that
the
plaintiff
is
seeking
non-economic
damages
for
physical pain, mental and emotional anguish, and psychological
damages incurred by the decedent prior to his death.
First, the
defendant’s lost wage analysis is not helpful in determining the
amount in controversy in this action.
action
pursuant
to
West
Virginia
In a deliberate intent
Code
§
23-4-2,
like
the
plaintiff’s action, any award to the plaintiff can be “offset for
any workers’ compensation benefits received as a result of the
employee’s injury or death.”
S.E.2d 234, 237 (W. Va. 1994).
Powroznik v. C. & W. Coal Co., 445
The defendant has failed to allege
that these lost wages were not provided for under the workers’
compensation system and, therefore, this Court cannot at this time
4
find that based on damages of lost wages, the defendant has
established the requisite amount in controversy.
The defendant does allege other damages, including the funeral
expenses and non-economic damages, but such damages are merely
speculative.
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
of its own to support [the claimed amount in controversy, but]
rather, has only presented a conjectural argument”).
In this instance, the defendant can only speculate that the
cost of the funeral was somewhere between $6,000.00 and $10,000.00.
As to the non-economic damages, the defendant does not begin to
estimate the actual amount of damages that are at issue.
Instead,
the defendant merely states that such damages make up the bulk of
recovery in a wrongful death case.
The defendant also states that
because the decedent died and because the decedent was married and
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survived by other beneficiaries, this will likely increase any
award for non-economic damages. Again, such statements only amount
to speculation and are not sufficient to establish the defendant’s
burden of proving that the amount in controversy exceeds $75,000.00
exclusive
of
interest
and
costs
by
a
IV.
preponderance
of
the
Conclusion
evidence.1
For the aforementioned reasons, the plaintiff’s motion to
remand (ECF No. 6) is hereby GRANTED.
Accordingly, it is ORDERED
that this case be REMANDED to the Circuit Court of Brooke County,
West Virginia.
It is further ORDERED that this case be DISMISSED
and STRICKEN from the active docket of this Court.
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 Brooke County.
Pursuant to Federal Rule of
Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
1
If the defendant uncovers evidence through the discovery
process that brings to light new facts that justify removal under
the amount in controversy theory, within a year of the filing of
this lawsuit, the defendant may file a second notice of removal.
28 U.S.C. §§ 1446(b), 1446(c), 1447, 1447(c).
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DATED:
August 21, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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