McDanell v. Precision Pipeline, LLC
Filing
11
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S 4 MOTION TO REMAND ORDER. The case is remanded to the Circuit Court of Brooke County, West Virginia. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 4/9/2015. (copy to counsel via CM/ECF; copy to Circuit Court of Brooke County, WV)(lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JENNIFER D. McDANELL, as
Administratrix for the Estate
of Robert Leon McDanell,
Plaintiff,
v.
Civil Action No. 5:15CV4
(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,
asserts claims arising out of Robert McDanell’s death while working
at a job site of 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 originally removed this
action in June 2014.
The plaintiff then filed a motion to remand,
which this Court granted in August 2014.
See Civil Action No.
5:14CV81.
Since then, the defendant filed a second notice of removal
with this Court.
The plaintiff then filed a motion to remand,
which is currently at issue.
ECF No. 4.
In that motion, the
plaintiff first argues that the defendant failed to satisfy the
amount in controversy requirement.
Here, the plaintiff points out
that the defendant primarily relies upon Dart Cherokee Basin
Operating Company, LLC, et al. v. Owens, 135 S. Ct. 547 (2014).
Dart,
the
Supreme
Court
of
the
United
States
held
In
that
a
“defendant’s notice of removal need include only a plausible
allegation
that
the
amount
jurisdictional threshold.”
in
Id.
controversy
exceeds
the
Further, the Court stated that
“[e]vidence establishing the amount is required . . . only when the
plaintiff
contests,
allegations.”
believes
that
requirement.
or
the
Id. at 557.
it
The
now
court
questions,
the
defendant’s
Based on that holding, the defendant
satisfies
plaintiff
the
seeks
to
amount
in
controversy
refute
that
argument,
asserting that Dart did not substantively alter the amount in
controversy
requirement
or
the
defendant’s
burden
of
proof.
Rather, the plaintiff believes that Dart only relates to the
pleading
standard
regarding
the
amount
in
plaintiff notes that the holding in Dart
controversy.
The
still requires the
defendant to prove the amount in controversy requirement by a
preponderance of the evidence when the plaintiff or court contests
the defendant’s allegations about that amount.
Because Dart does
not justify removal, the plaintiff requests that this Court grant
her motion.
The defendant then filed a response in opposition. ECF No. 6.
The defendant first argues that Dart is an “other paper,” as
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identified in 28 U.S.C. § 1446(b)(3) (“§ 1446”).
Because it
allegedly is an “other paper,” the defendant argues that § 1446
permits the defendant to file a notice of removal within 30 days of
when the defendant learned of the Court’s decision.
Next, the
defendant believes that it has satisfied the amount in controversy
by providing a plausible allegation, as required under Dart.
To
the extent that the plaintiff challenges that allegation, the
defendant argues that wrongful death cases like the plaintiff’s are
usually resolved for more than $75,000.00.
Further, the defendant
argues that the plaintiff asserts damages that exceed $75,000.00,
including lost wages which amounted to at least $100,000.00 a year.
For those reasons, the defendant argues that this Court should deny
the plaintiff’s motion.
Finally, the plaintiff filed a reply in support of her motion.
ECF No. 7. In that reply, the plaintiff asserts that the defendant
is mistaken in believing that Dart abrogates prior removal law so
as to be considered an “other paper.”
Further, the plaintiff
restates her argument that Dart alters the pleading standard,
rather than the evidentiary standard, concerning removal. Finally,
the plaintiff points out that the defendant makes essentially the
same arguments regarding the amount in controversy in its first
notice of removal.
For the reasons set forth below, the plaintiff’s motion to
remand is granted.
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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).
exclusive
of
However, if
federal jurisdiction arises only by virtue of the parties’ diverse
citizenship, such an action “shall be removable only if none of the
. . . defendants is a citizen of the State in which such action is
brought.”
Tomlin
v.
Office
of
Law
Enforcement
Tech.
Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.
Va. May 7, 2007).
The party seeking removal bears the burden of
establishing federal jurisdiction.
See In re Blackwater Security
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); 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.
Hartley
v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29
F.3d at 151.
Further, the court is limited to a consideration of facts on
the record at the time of removal.
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See Lowrey v. Alabama Power
Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether
removal was proper . . . the district court has before it only the
limited universe of evidence available when the motion to remand is
filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL
2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, No.
5:10CV127, 2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The
defendant’s removal cannot be based on speculation; rather, it must
be based on facts as they exist at the time of removal.”);
Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.
Va. May 12, 2011) (“The amount in controversy is determined by
considering the judgment that would be entered if the plaintiff
prevailed on the merits of his case as it stands at the time of
removal.”)
(internal
citations
omitted).
Regarding
punitive
damages, the mere likelihood of punitive damages, without more,
does not give rise to federal jurisdiction.
Cunningham, 2011 WL
1831596, at *2 (citing Landmark Corp. v. Apogee Coal Company, 945
F. Supp. 932 (S.D. W. Va. 1996)).
III.
Discussion
The facts show that the plaintiff is a resident of Louisiana,
and the defendant is a citizen of Wisconsin with its principal
place of business there as well.
The only issue in dispute,
however, is the amount in controversy requirement.
Based on the record before this Court, the plaintiff’s motion
to remand must be granted. The defendant fails to demonstrate that
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the amount in controversy requirement has been satisfied.
In its
response in opposition to the plaintiff’s motion, the defendant
claims that wrongful death cases are often settled or tried in
excess of $75,000.00.
ECF No. 6.
The defendant also argues that
the plaintiff seeks lost wages, punitive damages, attorney’s fees
and costs.
Thus, the defendant argues that when one considers
those damages that the plaintiff may receive, then the amount in
controversy requirement is satisfied.
That argument, however, is
misguided.
As stated earlier, the amount in controversy requirement
cannot be based on speculation or “what ifs” that may occur.
Rather, the court is limited to a consideration of facts on the
record at the time of removal.
See Lowrey, 483 F.3d at 1213–15.
At this time in the civil action, the amount of damages that may or
will be recovered is unknown at this time and speculative at best.
Speculation regarding the amount in controversy requirement fails
to satisfy the burden that the removing party bears.
See In re
Blackwater Security Consulting, LLC, 460 F.3d at 583.
Furthermore, the mere likelihood of punitive damages, without
more, does not give rise to federal jurisdiction. Cunningham, 2011
WL 1831596, at *2.
Although the plaintiff asserts a claim for
punitive damages, that does not “relieve the defendant, as the
removing party, of its burden to establish the propriety of removal
jurisdiction nor necessarily establish that it is more likely than
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not
that
the
amount
in
controversy”
will
exceed
$75,000.00.
Wiemers v. Good Samaritan Society, 212 F. Supp. 2d 1042, 1046 (N.D.
Iowa 2002).
Here, the defendant still fails to show that the
amount in controversy, exclusive of interest and costs, at this
time
satisfies
the
requirement
under
diversity
jurisdiction.
Therefore, because the defendant only speculates as to what the
amount of damages may be, removal is improper.
removal
jurisdiction
is
strictly
construed,
As stated earlier,
and
if
jurisdiction is doubtful, the federal court must remand.
187 F.3d at 422; Mulcahey, 29 F.3d at 151.
federal
Hartley,
Here, doubts exist as
to that jurisdiction.
In
addition
to
the
defendant’s
argument
regarding
the
aggregation of damages, the defendant asserts two more arguments as
to why this Court should deny the plaintiff’s motion to remand.
The defendant first heavily relies on Dart Cherokee Basin Operating
Co., L.L.C. v. Owens, believing that it abrogates prior removal law
regarding the amount in controversy.
Next, the defendant contends
that Dart constituted an “other paper” under § 1446, thereby
permitting removal.
As will be explained below, however, those
arguments are both without merit.
In Dart, the Supreme Court of the United States held that,
pursuant to § 1446(a), “a defendant’s notice of removal need
include only a plausible allegation that the amount in controversy
exceeds the jurisdictional threshold.”
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135 S.Ct. 547, 555 (2014).
That plausible allegation requirement, however, is made under the
assumption that the plaintiff does not contest that the amount in
controversy is satisfied.
If the plaintiff does contest the
defendant’s plausible allegation, however, removal will be proper
“by
the
defendant
‘if
the
district
court
finds,
by
the
preponderance of the evidence, that the amount in controversy
exceeds’ the jurisdictional amount.”
Id. at 553-54 (quoting 28
U.S.C. § 1446(c)(2)(B)). If a “defendant’s assertion of the amount
in controversy is challenged, . . . both sides submit proof and the
court decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied.” Id. at 554.
In this civil action, the defendant appears to assert that,
under Dart, all that is necessary for removal is a “short and
plain”
statement.
holding of Dart.
That
assertion,
however,
misconstrues
the
The holding in Dart primarily relates to the
necessary pleading standards that removing parties must satisfy.
The defendant, however, seems to argue that the holding in Dart
articulates both a pleading standard and an evidentiary standard.
The only evidentiary issue discussed in Dart, however, relates to
the evidentiary burden that is applied when the parties, or the
court, contest the defendant’s alleged amount in controversy.
Here,
the
plaintiff
does
contest
the
amount
in
controversy
requirement, whether it is by her motion to remand or the arguments
set forth in her filings. See, e.g.,Leon v. Gordon Trucking, Inc.,
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2014 WL 7447701, at *10 n.40, -- F. Supp. 3d -- (C.D. Cal. Dec. 31,
2014).
That means this Court must examine the evidence under a
preponderance of the evidence standard.
After analyzing the record and applying that evidentiary
standard, the evidence weighs in favor of denying removal.
In its
response in opposition, the defendant provides an affidavit from
its Vice President of Environmental Health and Safety.
In that
affidavit, it lists the wage rate of the decedent. That affidavit,
however, is the same affidavit that the defendant used in its
response to the plaintiff’s first motion to remand.
Action No. 5:14CV81 at ECF No. 7-1.
See Civil
Further, the defendant then
speculates that based on the damages that the plaintiff seeks to
recover in her complaint, the amount in controversy will likely be
satisfied if the plaintiff obtains those damages.
That affidavit
and argument, however, are nearly identical to the defendant’s
previous response in opposition to the first motion to remand. Id.
As the Supreme Court of the United States stated in St. Paul & C.R.
Co. v. McLean, “a party is not entitled . . . to file a second
petition for the removal upon the same grounds.”
108 U.S. 217
(1883); see Watson v. Carnival Corp., 436 F. App’x 954, 955 (11th
Cir. 2011) (“Once a case is remanded to state court, a defendant is
precluded from seeking a second removal on the same ground.”); see
also O’Bryan v. Chandler, 496 F.2d 403, 410 (10th Cir. 1974).
Stated another way, “[s]uccessive removals are therefore improper
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‘[a]bsent a showing that the posture of the case has so changed
that it is substantially a new case.’”
Leon, 2014 WL 7447701, at
*5 (quoting Sylvan Rd. N. Assoc. v. Lark Int’l, Ltd., 889 F. Supp.
60, 65 (D. Conn. 1995)); see Benson v. SI Handling Systems, Inc.,
188 F.3d 780, 783 (7th Cir. 1999) (“Multiple removals could
encounter problems--could even lead to sanctions--if nothing of
significance
changes
between
the
first
and
second
tries.”)
(internal citation omitted). In fact, the defendant appears to
proffer no new evidence, and simply restates many of the same
arguments and even uses the same affidavit.
5:14CV81 at ECF No. 7.
See Civil Action
The only new claim that the defendant
asserts in support of its second removal that it did not proffer
before is the recent holding in Dart.
the
burden
of
establishing
the
The removing party “bears
jurisdictional
amount
by
a
preponderance of the evidence,” and here the defendant has not met
that burden.
Lowery, 483 F.3d at 1208; see Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008) (“On a
challenge
of
jurisdictional
allegations,
[t]he
party
seeking
removal bears the burden of demonstrating that removal jurisdiction
is
proper.”)
(internal
quotations
omitted);
Strawn
v.
AT&T
Mobility, L.L.C., 530 F.3d 293, 296-97 (4th Cir. 2008) (“If a
plaintiff files suit in state court and the defendant seeks to
adjudicate the matter in federal court through removal, it is the
defendant who carries the burden of alleging in his notice of
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removal and, if challenged, demonstrating the court’s jurisdiction
over the matter.”).
Because the defendant has not met its burden,
the plaintiff’s motion to remand must be granted.
Notwithstanding the fact that the defendant did not meet its
burden, the defendant also argues that Dart should be considered an
“other
paper”
under
§
1446(b)(3).
That
section
states
the
following:
[I]f 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.
28 U.S.C. § 1446(b)(3) (emphasis added). The defendant argues that
the Dart opinion should be considered an “other paper.” Under that
reasoning, the defendant argues that the case became removable
within 30 days of its receipt of the Dart opinion.
A majority of
case law, however, finds that intervening decisions in unrelated
cases do not constitute an “other paper,” and thus do not provide
a basis for removal.
Green v. R.J. Reynolds Tobacco Co., 274 F.3d
263 (5th Cir. 2001); Dudley v. Putnam Inv. Funds, 472 F. Supp. 2d
1102, 1110 (S.D. Ill. 2007) (“Under [§ 1446(b)], judicial decisions
in cases separate from a case as to which removal is sought are
neither ‘orders’ nor ‘other papers’ for purposes of the statute.”);
Allen v. Monsanto Co., 396 F. Supp. 2d 728 (S.D. W. Va. 2005);
Holiday v. Travelers Ins. Co., 666 F. Supp. 1286, 1289 (W.D. Ark.
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1987) (recent Supreme Court decisions are not an “other paper”);
Johansen v. Employee Ben. Claims, Inc., 668 F. Supp. 1294 (D. Minn.
1987)
(“[e]very
court
which
has
[defined
“other
paper”]
has
construed the phrase . . . as referring solely to documents
generated
within
the
state
court
litigation
itself.”).
Furthermore, the right to removal jurisdiction is not founded upon
recent Supreme Court opinions.
creation of Congress.
Rather, removal jurisdiction is a
The holding of Dart only clarified the law
as to an aspect of removal jurisdiction under the statute, namely,
the
pleading
requirement.
standard
applied
to
the
amount
in
controversy
Thus, the Court in Dart did not create new law on the
matter, as the defendant appears to believe.
Therefore, because
the Dart decision fails to be considered an “other paper,” the
defendant is not entitled to the additional 30-day period for
removal, as provided under § 1446(b). Accordingly, the plaintiffs’
motion is granted, and the case is remanded to the Circuit Court of
Brooke County, West Virginia.
IV.
Conclusion
For the reasons set forth above, the plaintiffs’ motion to
remand (ECF No. 4) is GRANTED.
It is further ORDERED that this
civil action be DISMISSED and STRICKEN from the active docket of
this Court.
IT IS SO ORDERED.
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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, West Virginia.
Pursuant to
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
DATED:
April 9, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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