Kelley v. Enhanced Recovery Company, LLC
Filing
18
MEMORANDUM OPINION AND ORDER DENYING 5 MOTION TO REMAND AND SCHEDULING ORDER. Joinder, Amendments, Crossclaims, Counterclaims and Third-Party Complaint due by 9/28/2015. Discovery due by 11/30/2015. Motions due by 12/13/2015. Joint Pretrial Ord er due by 2/11/2016. Pretrial Conference/Final Settlement Conference set for 2/16/2016 01:15 PM in Judge Stamp Chambers before Senior Judge Frederick P. Stamp Jr. Jury Selection/Jury Trial set for 3/1/2016 08:30 AM in Wheeling District Judge Courtroom, South before Senior Judge Frederick P. Stamp Jr. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/30/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATTY KELLEY,
Plaintiff,
v.
Civil Action No. 5:15CV10
(STAMP)
ENHANCED RECOVERY COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND
AND SCHEDULING ORDER
I.
This
West
Virginia
Background
Consumer
Credit
and
Protection
Act
(“WVCCPA”) case was originally filed in the Circuit Court of
Marshall County, West Virginia.
Patty
Kelley,
alleges
that
In her complaint, the plaintiff,
the
defendant,
Enhanced
Recovery
Company, LLC, continued to contact her numerous times to attempt to
collect a debt from the plaintiff after the plaintiff had informed
the defendant that she was represented by counsel. The plaintiff’s
complaint asserts four claims: violation of the WVCCPA, violation
of the West Virginia Computer Crime and Abuse Act (“WVCCAA”),
intentional
infliction
of
emotional
distress,
and
common
law
invasion of privacy. The plaintiff seeks compensatory and punitive
damages.
The case was then removed to this Court by the defendant.
In
its notice of removal, the defendant asserts that under the WVCCPA,
the amount in controversy is potentially $312,000.00 based on the
numerous violations the plaintiff has alleged. The defendant notes
that in addition to the $312,000.00 sum, the plaintiff’s damages
could likely be even more based on plaintiff’s WVCCAA, intentional
infliction of emotional distress, invasion of privacy, and punitive
damages claims. Finally, the defendant argues that attorney’s fees
and costs may be awarded under the WVCCPA and estimates that those
costs would be approximately $25,000.00.
In her motion to remand, the plaintiff argues that the
defendant has failed to prove by a preponderance of the evidence
that the amount in controversy exceeds $75,000.00, exclusive of
interests and costs.1
The plaintiff asserts that the defendant has
made assertions that the amount in controversy is met without
providing competent proof or tangible evidence to support those
assertions.
Thus, the plaintiff contends that the defendant’s
assertions are speculative.
In response, the defendant asserts that it has sufficiently
proven the amount in controversy because it is only bound by a
liberal notice pleading standard.
The defendant argues that
pursuant to United States Court of Appeals for the Fourth Circuit
precedent, it has provided more detailed allegations than the
Fourth Circuit has previously held to be sufficient.
Further, the
defendant contends that under this Court’s precedent, the maximum
1
The plaintiff had originally argued that the notice of removal
was untimely. However, the plaintiff has withdrawn that argument.
2
penalty dictated by the WVCCPA should be used in calculating the
amount in controversy and thus the amount in this case would
clearly exceed $75,000.00 based on the WVCCPA claim alone.
The
defendant provided an affidavit from Richard “Rocky” Landoll, a
legal officer for the defendant, which states that through his
investigation of the plaintiff’s claims and the plaintiff’s proffer
of a call log, he believes that the plaintiff is alleging the
receipt of 76 calls from the defendant in violation of the WVCCPA
and WVCCAA.
In reply, the plaintiff asserts that the defendant has not
provided competent evidence of the number of violations of the
WVCCPA
and
the
WVCCAA.
Further,
the
plaintiff
argues
that
attorney’s fees are too speculative in this case as there is not a
set amount of damages sought in the complaint.
Moreover, the
plaintiff contends that the general and punitive damages claims are
too speculative at this time to meaningfully increase the amount in
controversy.
Thus, the plaintiff argues that the defendant has
failed to carry its burden of proof.
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.
3
§ 1331, and (2) those involving citizens of different states where
the amount in controversy exceeds $75,000.00, exclusive of interest
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 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.
4
Chase
v. Shop ‘N Save Warehouse Foods, 110 F.3d 424, 428 (7th Cir. 1997).
III.
Discussion
The plaintiff argues that the defendant has not provided
sufficient evidence to prove that the amount in controversy has
been met in this action.
The plaintiff asserts that the defendant
has failed to do so considering all of her claims.
However, this
Court finds that the defendant has met its burden of proving that
the amount in controversy exceeds $75,000.00, exclusive of interest
and costs, and has done so by only considering the plaintiff’s
WVCCPA claim.
Thus, this Court will only review the WVCCPA claim
as it has the potential to exceed the $75,000.00 threshold by
itself.
When there is a maximum penalty by statute, it is appropriate
to measure the amount in controversy by the maximum and not by what
the plaintiff is likely to win.
See Brill v. Countrywide Home
Loans Inc., 427 F.3d 446, 449 (7th Cir. 2005); Korn v. Polo Ralph
Lauren Corp., 536 F. Supp. 2d 1199 (9th Cir. 2008).
This method of
measuring the amount in controversy is also the common practice in
cases under the WVCCPA which have been removed to federal court.
See Knott v. HSBC Card Services Inc., No. 3:10CV82, 2010 WL
35522105 at *4 (N.D. W. Va. Sept. 8, 2010); Maxwell v. Wells Fargo
Bank, N.A., No. 2:09-0500, 2009 WL 3293871 (S.D. W. Va. Oct. 9,
2009). As the surrounding case law demonstrates, it is appropriate
to use the statutory maximum in estimation of the amount in
5
controversy.
See e.g., Woodrum v. Mapother & Mapother P.S.C.,
Inc., No. 2:10-00478, 2010 WL 3943732 at *4 (W. Va. Oct. 5, 2010);
Jefferson v. Quicken Loans, Inc., No. 5:13CV59, 2013 WL 3812099, at
*2 (N.D. W. Va. July 19, 2013).
Pursuant to the WVCCPA, penalties for such violations are “not
less than one hundred dollars nor more than one thousand dollars.”
W. Va. Code § 46A-5-101(1).
Further, the United States Department
of Labor Consumer Price Index provides an adjusted maximum penalty
of $4,655.09, providing for inflation, as the $1,000.00 maximum was
set in 1974.
Under the standard cited above, this Court will use
the
statutory
maximum
penalty
to
calculate
the
amount
in
controversy in this case given the evidence that was available at
the time of removal.
The defendant states that in the course of discussions with
plaintiff’s counsel, plaintiff’s counsel provided a log of all
calls allegedly placed to the plaintiff in violation of the WVCCPA.
See ECF No. 12-1.
That call log indicated that there were 76 calls
that were alleged violations.
Id.
The plaintiff appears to argue
that because the defendant is using a call log provided to it by
the plaintiff, rather than its own call log, such evidence is
insufficient to support a finding that the amount in controversy is
met.
Further, the plaintiff notes that her complaint does not
state a certain number of violative phone calls and thus, the
defendant has not provided “competent” proof.
6
This Court must disagree with the plaintiff. As stated above,
this Court may consider evidence available at the time of removal,
including 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).
In its notice
of removal, the defendant cites the allegations made by plaintiff’s
counsel as to the number of phone calls.
Further, the defendant
provides an affidavit from its legal representative that clarifies
the plaintiff’s allegations and that such allegations were made
prior to removal.
Additionally, the defendant provides, as an
exhibit, the call log provided to it by the plaintiff.
This evidence is sufficient for this Court to find that the
potential amount in controversy exceeds $75,000.00, exclusive of
interest and costs.
See Wyatt v. Capital One Bank, N.A., No.
5:14cv55-FPS (N.D.W. Va. Jan. 7, 2015)(finding that the defendant’s
knowledge of the number of alleged WVCCPA violations, based on
allegations made by the plaintiff in settlement demands, was enough
for the defendant to determine that the amount in controversy had
been met).
It is irrelevant that the defendant based removal on
the plaintiff’s proffered call log rather than a call log prepared
by the defendant itself.
Such evidence may be considered by this
Court as it was evidence that was available at the moment the
petition for removal was filed.
Chase v. Shop ‘N Save Warehouse
7
Foods, 110 F.3d 424, 428 (7th Cir. 1997).
Given the call log,
which lists 76 alleged violations of the WVCCPA, the possible
amount in controversy, using the maximum penalty allowable under
the statute, exceeds $353,000.00 using the 76 phone calls as a base
point.
the
As such, the defendant has met its burden in proving that
amount
in
controversy
has
been
met
and
that
jurisdiction was appropriate at the time of removal.
federal
Tolley, 591
F. Supp. 2d at 845.
IV.
Scheduling Order
On March 3, 2015, the parties filed their meeting report and
proposed discovery plan.
In their report, the parties requested
that discovery commence after this Court entered an order on the
plaintiff’s motion to remand. Pursuant to that request and Fed. R.
Civ. P. 16(b), Fed. R. Civ. P. 26(f) and the Local Rules, it is
hereby ORDERED that:
1.
Discovery:
All discovery shall be fully served and
completed by November 30, 2015.
"Completed discovery" as used in
Fed. R. Civ. P. 16(b) means that all discovery, objections, motions
to compel and all other motions and replies relating to discovery
in this civil action must be filed in time for the parties
objecting or responding to have the opportunity under the Federal
Rules
of
Civil
Procedure
to
make
responses.
The
term
"all
discovery" in the preceding definition of "complete discovery"
includes the disclosures required by Fed. R. Civ. P. 26(a)(1) and
8
(2), but does not include the disclosures required by Fed. R. Civ.
P. 26(a)(3).
Parties have a continuing obligation to supplement their
responses beyond the discovery cut-off date as provided in Fed. R.
Civ. P. 26(e).
The parties should refer to LR Civ P 5.01, LR Civ
P 26.01-26.04, LR Civ P 33.01, LR Civ P 34.01, LR Civ P 36.01, LR
Civ P 37.02 for further instructions on discovery practice.
2.
discovery
Discovery Limitations:
(i.e.,
numbers
of
The preemptive limitations on
interrogatories,
requests
for
admissions, and depositions) set out in LR Civ P 26.01(c) apply to
this action unless stipulated to by the parties and agreed to by
the Court or otherwise ordered.
3.
Mediation:
This
Court
encourages
either
court-facilitated or private mediation as a method to resolve the
claims in this civil action.
If the parties have not conducted
mediation prior to the deadline for disclosure of experts provided
in paragraph 4 below, the parties shall confer to consider whether
this case would benefit from mediation.
Thereafter, the parties
are DIRECTED to inform the Court if mediation is desired and, if
so, whether the parties will employ a private mediator or would
like the Court to schedule a court-facilitated mediator.
If the
parties employ a private mediator, lead counsel for the plaintiff
(or an attorney representing a defendant if the plaintiff is
appearing pro se) shall instruct the private mediator to complete
9
the mediation report form (which is available at this Court's
website at www.wvnd.uscourts.gov/documents/forms) and submit the
completed mediation report form to the appropriate clerk's office
within ten days following the mediation.
4.
Expert Disclosures:
The party bearing the burden of
proof on an issue shall make the disclosures required by Fed. R.
Civ. P. 26(a)(2)(A) and (B) for that issue to all other parties or
their counsel no later than October 5, 2015.
The party not bearing the burden of proof on an issue shall
make the disclosures required by Fed. R. Civ. P. 26(a)(2)(A) and
(B) for that issue to all other parties or their counsel no later
than October 26, 2015.
All parties shall provide the disclosures required by Fed. R.
Civ. P. 26(a)(2)(A) and (B) if the evidence is intended solely to
contradict or rebut evidence on the same issue identified by
another party under Fed. R. Civ. P. 26(a)(2)(B) no later than
November 9, 2015.
The disclosures described in Fed. R. Civ. P. 26(a)(2)(B) shall
not be required of physicians and other medical providers who
examined
or
treated
a
party
or
party's
decedent
unless
the
examination was for the sole purpose of providing expert testimony
in the case.
10
5.
Examinations:
All
independent
physical
or mental
examinations or inspection of property shall be completed by
October 19, 2015.
6.
Joinder,
Third-Party
Amendments,
Complaints:
Crossclaims,
Motions
to
join
Counterclaims
additional
and
parties,
motions to amend pleadings, and any crossclaim or counterclaim, as
well as any similar motions, shall be filed on or before September
28, 2015.
Any response or reply shall be filed in accordance with
LR Civ P 7.02(b).
Any party filing a motion to amend a pleading, a third-party
complaint, a surreply, or any other pleading that requires leave of
court to file shall attach to that motion a signed copy of the
proposed amended pleading. However, the amended pleading shall not
be filed until the Court grants the particular motion.
7.
Dispositive Motions:
All dispositive motions, as well as
deposition transcripts, admissions, documents, affidavits, and any
other such matters in support thereof, shall be filed at the
Clerk's Office with copies served upon opposing counsel by December
13, 2015.
Any such motion must be supported by a memorandum at the
time the motion is filed.
Memoranda in opposition to such motions
filed on the above deadline date shall be filed with copies served
upon opposing counsel on or before January 4, 2016.
If a motion
has been filed before the above deadline date, opposing counsel is
directed to comply with LR Civ P 7.02(b), which requires responses
11
no later than twenty-one days after the date of service of the
motion. Any reply memoranda shall be filed with copies served upon
opposing counsel on or before January 18, 2016 or, if the response
is filed prior to the above deadline date, within fourteen business
days from the date of service of the memorandum in response to the
motion.
All dispositive motions unsupported by memoranda will be
denied without prejudice.
The parties shall comply with LR Civ P
7.02 imposing a page limitation upon memoranda unless a motion to
exceed the page limitation is granted.
See LR Civ P 7.02.
Factual assertions made in memoranda should be supported by
specific
references,
including
page
or
paragraph
numbers,
to
affidavits, depositions or other documents made a part of the
record before the Court.
Copies of the supporting documents, or
relevant portions thereof, should be appended to the memoranda.
The parties may refer to LR Civ P 7.02 for details on motion
practice before this Court.
Deadlines for the filing of dispositive motions shall be
altered only upon order of the Court.
8.
Settlement
Disclosures:
Conference
Pursuant
to
and
LR
Fed.
Civ
P
R.
Civ.
16.04(a),
P.
26(a)(3)
counsel
and
unrepresented parties shall meet to conduct settlement negotiations
no later than February 5, 2016.
Lead trial counsel for the
plaintiff first named in the complaint shall take the initiative in
scheduling such a meeting; all other counsel shall cooperate in the
12
effort to achieve a successful negotiation and settlement. Counsel
and
unrepresented
parties
must
be
prepared
at
the
pretrial
conference to certify that they tried in their meeting to settle
the case.
If the case is not settled at the meeting, and if there is no
order or stipulation to the contrary, counsel and unrepresented
parties shall make all Fed. R. Civ. P. 26(a)(3) disclosures at the
settlement meeting.
9.
Jury
Instructions
and
Voir
Dire:
Proposed
jury
instructions on substantive theories of recovery or defense, on
damages and on evidentiary matters peculiar to the case, together
with
pertinent
statutory
and
case
authority,
special
interrogatories and verdict forms, if any be appropriate to the
case, and all proposed voir dire questions requested by counsel for
submission to the jury shall be exchanged by counsel and filed not
later than February 16, 2016.
If the instructions and voir dire in this case are being typed
on a computer, counsel are requested to provide to the court a disk
containing the instructions in WordPerfect 12.0 format which is
labeled as to the case style, civil action number and party
proposing the instructions.
The envelope containing the disk
should be marked "Contains Disk -- Do Not X-Ray -- May Be Opened
for
Inspection."
The
disk
will
requested.
13
be
returned
to
counsel
if
10.
Motions in Limine:
No motion in limine may be filed
unless and until the moving party consults with opposing counsel to
determine whether the matter presented in the motion is actually in
dispute.
If the matter is not in dispute, but the party wishes to
preserve
the
matter
for
the
record,
such
party
may
file
a
stipulation after consulting with opposing counsel.
Where a matter is actually in dispute, all motions in limine,
including
motions
Pharmaceuticals,
relating
Inc.,
509
to
U.S.
Daubert
579
v.
(1993),
Merrell
accompanied
Dow
by
memoranda of law, and all other related pretrial motions shall be
filed not later than January 28, 2016.
Responses to such motions
shall be filed by February 4, 2016.
If a motion has been filed before the above deadline date,
opposing counsel is directed to respond no later than fourteen days
after the date of service of the motion in accordance with LR Civ
P 7.02, or respond by the date given in this scheduling order,
whichever date comes first.
11.
Joint Pretrial Order:
A proposed joint pretrial order,
titled "Pretrial Order," shall be filed not later than February 11,
2016.
The proposed joint pretrial order shall contain at least
those matters provided for under LR Civ P 16.04(b).
The witness
lists, which shall be filed as part of the pretrial order, shall be
considered by this Court as final lists and shall not be modified
14
except for good cause shown.
Following the pretrial conference,
this Court shall enter the pretrial order which shall then be
modified only with the permission of the Court.
In
most
cases,
the
plaintiff
shall
be
responsible
initiating the preparation of the joint pretrial order.
for
However,
in cases involving a pro se plaintiff, the defendant shall be
responsible for initiating the preparation of the joint pretrial
order.
12.
Exhibits and Objections to Exhibits:
On or before
February 16, 2016, plaintiff and defendant shall each:
a.
file A LIST of proposed exhibits,
b.
submit to the Clerk ONE BINDER OF COPIES OF THE EXHIBITS,
with the exhibits indexed and individually tabbed, for the Court's
use, and
c.
forward copies of the proposed exhibits to opposing
counsel.
Objections to exhibits, WITH THE STATED REASONS FOR THE
OBJECTION AND THE EXHIBIT TO WHICH OBJECTION IS MADE ATTACHED,
shall be filed on or before February 22, 2016.
the
reasons
objections.
for
the
objections
may
Failure to state
constitute
a
waiver
of
Further, failure to timely file an objection to an
exhibit shall result in this Court deeming the exhibit admitted.
All
exhibits
shall
sequence (not lettered).
be
appropriately
marked
in
numerical
Exhibit markers may be secured from the
15
Clerk.
ORIGINAL EXHIBITS shall be filed AT THE TIME OF TRIAL AND
SHOULD NOT BE FILED PRIOR TO TRIAL.
If counsel desires each juror
to have a binder of copies of exhibits to view as counsel examines
witnesses, these should be prepared for presentation to each juror
at the appropriate time but with the Court's permission.
13.
Interrogatories and Depositions to be Used at Trial and
Objections:
On or before February 16, 2016, plaintiff shall file
any interrogatories, answers thereto, depositions, etc., specifying
the appropriate portions thereto that plaintiff intends to offer in
this case.
2016.
Defendant shall do the same on or before February 22,
Any objection to the introduction of any of the foregoing
shall be filed in writing by the objecting party or parties no
later than February 25, 2016 or such objection shall be deemed to
have been waived.
This paragraph does not apply to discovery
materials that will be used at trial solely in cross-examination or
for impeachment.
14.
Biographical Sketches:
Biographical sketches of any
proposed expert witnesses shall be filed and served upon opposing
counsel by February 16, 2016.
15.
enter
Stipulation of Facts: Counsel are encouraged to meet and
into
stipulations
of
facts
in
this
case
and
any
such
stipulation shall be reduced to writing, signed by counsel and
filed and served upon opposing counsel by February 16, 2016.
16
16.
Pretrial
Conference/Final
Settlement
Conference:
A
pretrial conference/final settlement conference shall be held on
February 16, 2016 at 1:15 p.m. at Wheeling, West Virginia.
The
conference shall be attended by lead trial counsel for each
represented party and all unrepresented parties.
Counsel and
parties should be prepared to participate fully and to discuss all
aspects of the case and the matters set forth in the pretrial order
previously filed.
Individuals with full authority to settle the
case for each party shall be present in person or immediately
available by telephone.
17.
Trial:
Jury selection in this action shall commence on
March 1, 2016 at 8:30 a.m. at Wheeling, West Virginia.
Trial will
commence upon the completion of jury selection and trial in any
prior case scheduled for this date.
This case is presently the
second case on the trial docket for that week.
18.
Motion for Continuance:
A party or parties requesting a
continuance must contact all other parties to determine three
possible dates to which to move the deadline or hearing.
The
moving party must specify these three possible dates within the
motion to continue.
LR Gen P 88.02.
If any party or parties
object to a continuance, that fact shall be noted in the motion.
19.
attorneys
Settlement Authority and Sanctions:
for
each
party
and
all
At least one of the
unrepresented
parties
participating in any conference before trial shall have authority
17
to make decisions as to settlement, stipulations and admissions on
all
matters
discussed.
that
participants
reasonably
anticipate
may
be
Counsel and parties are subject to sanctions for
failures and lack of preparation specified in Fed. R. Civ. P. 16(f)
and LR Civ P 37.01 respecting pretrial conferences or orders.
20.
Deadlines Final:
The time limitations set forth above
shall not be altered except as set forth in LR Civ P 16.01(f).
All dates for filings refer to the date the materials must be
actually received, not the mailing date.
V.
Conclusion
Based on the analysis above, this Court finds that the
plaintiff’s motion to remand is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
March 30, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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