Torbett v. Pike Electric, LLC et al

Filing 9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S 4 MOTION TO REMAND. It is ORDERED that this civil action be REMANDED to the Circuit Court of Ohio County, West Virginia. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment pursuant to Rule 58. Signed by Senior Judge Frederick P. Stamp, Jr on 12/11/2015. (kac) (Copy to counsel, Circuit Clerk of Ohio County)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EMILY E. TORBETT,
Plaintiff,
v.

Civil Action No. 5:15CV142
(STAMP)

PIKE ELECTRIC, LLC,
a foreign limited
liability company
and JAMES A. DILLON,
individually,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
I.

Background

The plaintiff originally filed her complaint in the Circuit
Court of Ohio County, West Virginia.
a citizen of West Virginia.

ECF No. 1.

The plaintiff is

Defendant Pike Electric, LLC (“Pike

Electric”) is a limited liability company that maintains its
principal place of business in North Carolina.

Defendant James A.

Dillon (“Dillon”), allegedly an employee of Pike Electric, is a
citizen of Ohio.

According to the complaint, Dillon and the

plaintiff were in a car accident while Dillon was acting as an
employee of Pike Electric.
plaintiff

claims

significant

she

medical

Due to Dillon’s negligence, the

suffered
costs.

serious

She

seeks

injuries

and

incurred

compensatory

damages,

attorney’s fees, and all other relief the Court deems proper.

The defendants removed this action, to which the plaintiff
timely filed this motion to remand.

ECF No. 4.

The plaintiff

argues that the defendants have failed to satisfy the amount in
controversy requirement.

The plaintiff points out that under her

ad damnum clause of the complaint, she requests an award determined
by the jury or court.

Because she did not specifically plead that

damages exceed $75,000.00, the burden rests on the defendants to
satisfy the amount in controversy requirement.

The plaintiff also

asserts that the defendants have not offered a settlement that
satisfies the amount requirement.

The plaintiff believes that

unless the “defendants admit owing the plaintiff a minimum of
$75,000,” they fail to satisfy their burden.
the

plaintiff

believes

the

amount

in

For those reasons,

controversy

requirement

remains unsatisfied, and therefore, seeks to remand this civil
action.
The defendants filed a response in opposition.
The

ECF No. 5.

defendants

settlement

first

argue

that

pre-litigation

negotiations “are not the standard for determining the amount in
controversy.” The defendants then contend that the plaintiff cites
no authority in support of her arguments regarding settlement
negotiations

and

admissions

by

the

defendants.

Next,

the

defendants turn to why the amount in controversy is satisfied.
They point out that the plaintiff alleges the following: (1) she
received medical treatment for over 2.5 years for her injuries; (2)

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she suffered injuries to her head, jaw, neck, shoulders, back,
arms, legs and body chemistry; (3) she incurred lost wages and will
continue do so for the foreseeable future; and (4) many of her
injuries are permanent.

The defendants then argue that assuming

the plaintiff made minimum wage, her lost wages for the past 2.5
years alone would exceed $75,000.00.
the

complaint,

the

defendants

controversy is easily satisfied.

Based on the allegations of

believe

that

the

amount

in

The plaintiff did not file a

reply.
For the reasons set forth below, the plaintiff’ motion to
remand is GRANTED.
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

3

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.

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 plaintiffs
prevailed on the merits of his case as it stands at the time of
removal”

(internal

citations

omitted)).

4

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 citizen of West
Virginia.

Pike Electric maintains its principal place of business

in North Carolina, and Dillon is a citizen of Ohio.
facts, the parties are diverse.

Based on those

The only issue in dispute is the

amount in controversy requirement under 28 U.S.C. § 1441.
Based on the record before this Court, the plaintiff’s motion
to remand must be granted. The defendants fail to demonstrate that
the amount in controversy requirement has been satisfied. In their
response in opposition, the defendants rely on the plaintiff’s
allegations about her serious injuries.

Further, the defendants

provide an estimate of the plaintiff’s lost wages during her
recovery.

Thus, the defendant argues that when one considers the

compensatory damages that the plaintiff seeks as well as what the
plaintiff may receive if successful, then the amount in controversy
requirement is satisfied.

That calculation, however, fails to

satisfy the defendants’ burden.
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

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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 completely unknown 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.

Therefore,

because the defendants only speculate as to the amount of damages,
removal is improper.

As stated earlier, removal jurisdiction is

strictly construed, and if federal jurisdiction is doubtful, the
federal court must remand.
F.3d

at

151.

Here,

Hartley, 187 F.3d at 422; Mulcahey, 29

doubts

exist

as

to

that

jurisdiction.

Accordingly, the plaintiff’s motion is granted, and the case is
remanded to the Circuit Court of Ohio County, West Virginia.1
IV.

Conclusion

For the reasons set forth above, the plaintiff’s motion to
remand is GRANTED.

Accordingly, it is ORDERED that this civil

action be REMANDED to the Circuit Court of Ohio County, West
Virginia.

It

is

further

ORDERED

that

this

civil

action

be

DISMISSED and STRICKEN from the active docket of this Court.

1

The defendants are reminded, however, that should the case
become removable within one year after commencement of the action,
they may be able to again seek removal.
See 28 U.S.C.
§ 1446(b)(3)(2012) (“Except as provided in subsection (c), if 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.”).
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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 Ohio County, West Virginia.

Pursuant to

Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
DATED:

December 11, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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