White et al v. Macy's Corporate Services, Inc. et al
Filing
13
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO REMAND [DKT. NO. 7]: Granting 7 Motion to Remand; case remanded to Circuit Court of Hancock County; clerk to enter judgment and remove case from active docket of this Court. Signed by District Judge Irene M. Keeley on 5/23/16. (copy to Hancock County Circuit Court) (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOROTHY J. WHITE and
JOHN W. WHITE,
Plaintiffs,
v.
//
CIVIL ACTION NO. 5:16CV38
(Judge Keeley)
MACY’S CORPORATE SERVICES, INC., and
DEPARTMENT STORES NATIONAL BANK,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 7]
Pending before the Court is the plaintiffs’ motion to remand
(dkt.
no.
7),
which
asserts
that
the
Court
does
not
have
jurisdiction because the amount in controversy does not exceed
$75,000 as required under 28 U.S.C. § 1332(a). For the reasons that
follow, the Court GRANTS the motion and REMANDS this case to the
Circuit Court of Hancock County, West Virginia.
I. BACKGROUND
Dorothy J. White (“Mrs. White”) maintained a credit card and
account
with
the
defendants,
Macy’s
Corporate
Services,
Inc.
(“Macy’s”) and Department Stores National Bank (“DSNB”). Her May
27, 2015 credit card statement reflected a $2,393.62 account
balance.
Mrs. White refinanced her home through Vantage Point Title,
Inc. (“Vantage Point”), so that she could pay off her then existing
debts and bills, including her Macy’s credit card debt. On June 1,
WHITE, ET AL., V. MACY’S, ET AL.
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2015, Vantage Point prepared a check in the amount of $2,423.45
made payable to Macy’s, which Mrs. White took to the Macy’s retail
store located at the Fort Steuben Mall, Steubenville, Ohio, on June
8, 2015. According to Mrs. White, Macy’s accepted the payment and
tendered her a receipt reflecting such. The payment appeared in her
June 27, 2015 account statement, which then showed an overpaid
balance of $12.10.
When Mrs. White’s July 27, 2015 account statement arrived, it
showed a balance of $54.39, which the Whites paid on August 3,
2015, bringing the account balance to $0.00. Nevertheless, when
Mrs. White’s August 27, 2015 account statement arrived, it showed
a “payment correction” noting that the balance due was $2,423.45.
Mrs. White went to the Macy’s store at the Beaver Valley Mall
Complex in Monaca, Pennsylvania, where she spoke with the Asset
Protection Manager for Macy’s, who discovered that the defendants
had incorrectly handled and accounted for the $2,423.45 payment on
June 8, 2015.
Nevertheless,
Mrs.
White’s
September
27,
2015
account
statement continued to reflect a balance due of $2,423.45, plus
interest. When Mrs. White called the defendants on October 13, 2015
to dispute the statement, they informed her that they needed a
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WHITE, ET AL., V. MACY’S, ET AL.
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cancelled check before they would remove the improper charges from
her account. Mrs. White then procured the cancelled check from
Vantage Point and took it, together with a copy of the original
receipt,
to
the
Macy’s
Beaver
Valley
Mall
store.
The
Asset
Protection Manager then faxed the documents to the defendants who
had requested the information. The parties continued to exchange
a monthly volley of account statements reflecting the unpaid
balance, and the paperwork requested to clear up the discrepancy,
at least through January of 2016, and to no avail.
On February 22, 2016, the Whites filed suit in the Circuit
Court of Hancock County, West Virginia, which asserted nine counts:
•
Count I:
•
•
•
Count II:
Count III:
Count IV:
•
•
•
•
•
Count
Count
Count
Count
Count
V:
VI:
VII:
VIII:
IX:
Violation of the W. Va. Consumer Credit and
Protection Act
Fraud
Constructive Fraud
Breach of Contract and the Covenant of Good
Faith and Fair Dealing
Tort of Outrage
Negligence
Unjust Enrichment
Joint Venture
Loss of Consortium (asserted by Mr. White
only)
The Whites also asserted that the defendants’ actions were wilful,
wanton, purposeful, intentional, and committed with malice, evil
intent, oppression, gross fraud, and with reckless disregard for
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the plaintiffs, the law, social responsibility, common decency,
and/or civil obligations. They sought damages for:
•
•
•
•
•
•
•
•
•
•
Mental Anguish;
Emotional Distress;
Physical Injuries;
Medical bills, costs, and expenses;
Aggravation, annoyance, and inconvenience;
Humiliation, embarrassment, grief, frustration, worry,
hopelessness;
Economic injury;
Loss of monies;
Attorney’s fees and costs; and
Other foreseeable and/or consequential loss, costs, and
expenses.
The defendants removed to this Court on March 28, 2016, citing
diversity jurisdiction. Their notice of removal asserted that the
plaintiffs were citizens of West Virginia, that Macy’s and DSNB
were citizens of Ohio and South Dakota respectively, and that the
amount in controversy exceeded $75,000 (dkt. no. 1 at 3). On April
12, 2016, the Whites moved to remand (dkt. no. 7), claiming that
the $75,000 amount in controversy threshold had not been met.
II. DISCUSSION
A. Applicable Law
Pursuant to 28 U.S.C. § 1441, “any civil action brought in a
State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
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defendants, to the district court of the United States for the
district and division embracing the place where such action is
pending.” District courts have original jurisdiction over civil
actions in which the parties are citizens of different states, and
where the amount in controversy exceeds $75,000, not including
interests
and
costs.
See
28
U.S.C.
§
1332(a).
Thus,
if
the
requirements of § 1332 are met, a defendant or defendants, may
remove the state filed action to federal court.
It is the party seeking removal that bears the burden of
establishing the Court’s jurisdiction. Heller v. TriEnergy, Inc.,
877 F.Supp.2d 414, 423 (N.D.W.Va. July 9, 2012) (citing Maryland
Stadium Authority v. Ellerbe Becket Incorporated, 407 F.3d 255, 260
(4th Cir. 2005). Notably, courts should construe removal statutes
strictly and, when in doubt, remand is required. Id. (citation
omitted). Indeed, there is a strong presumption that the amount in
controversy has not been met. Scaralto v. Ferrell, 826 F.Supp.2d
960, 964 (S.D.W.Va. Nov. 29, 2011) (citing St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 290 (1938)).
As
to
the
amount
in
controversy
component,
the
ad
damnum clause of many complaints often circumvents any argument
about whether the $75,000 threshold is met. See
5
Heller, 877
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F.Supp.2d at 427 (citations omitted). When the ad damnum clause is
silent as to the amount of damages sought, however, courts require
the removing defendant to establish by a preponderance of the
evidence
that
the
amount
in
controversy
has
been
met.
Id.
(collecting cases).
When determining the amount in controversy, courts should
“‘consider[] the judgment that would be entered if the plaintiff
prevailed on the merits of his case as it stands at the time of
removal.’” Id. (quoting Landmark Corp. v. Apogee Coal Co., 945
F.Supp. 932, 936-37 (S.D.W.Va. 1996)). A removing defendant must
bring forth evidence in support of his claims that the amount in
controversy
is
met,
not
simply
make
bare
allegations.
Id.
(citations omitted). Ultimately, the Court should consider the
entire record before it and, without abandoning its common sense,
make an independent evaluation regarding the amount in controversy.
Id. (citations omitted); see also Scaralto, 826 F.Supp.2d at 964.
B. Analysis
Here, the defendants note that the Whites have asserted nine
separate claims, seeking economic damages, non-economic damages,
and
statutory
damages,
together
with
punitive
damages
and
attorney’s fees. According to the defendants, adding all these
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items together proves that the threshold has been met. In further
support, the defendants cite cases establishing maximum multipliers
for non-economic damages in relationship to economic damages, as
well as maximum multipliers for punitive damages in relation to
compensatory damages.
Such bare assertions, however, are not evidence that the
Whites are more likely than not to recover in excess of $75,000. As
an initial matter, the law does not allow the Whites to recover
duplicative damages, and the core claim in this case is for
$2,393.62 in unapplied credit card payments. The defendants attempt
to extrapolate the Whites’ maximum possible award without providing
actual evidence to support the likelihood of such a recovery.
Noting that the Whites could be awarded non-economic damages,
at as much as a 6:1 ratio to economic damages, the defendants go on
to cite cases in which courts have affirmed punitive damages awards
at a 9:1 ratio to compensatory damages. Finally, they claim that
attorney’s fees in a similar case reached $25,000, and that a
similar
sum
determination
should
here.
be
Such
considered
amounts,
towards
however,
the
appear
threshold
to
be
the
defendants’ attempt to show what the upward extreme of a case might
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be worth, not evidence that this particular case is likely to reach
the necessary threshold.
Both parties cite Savarese v. Allstate Ins. Co., et al.,
5:06CV36 (attached at dkt. no. 8-1), a case in which Judge Stamp
concluded that the removing defendants there had failed to provide
sufficient evidence to satisfy the threshold. In Savarese, the
plaintiffs sought $6,490.13 in compensatory damages,1 as well as
punitive damages and attorney’s fees and costs. Judge Stamp held
that the defendants had failed to establish by a preponderance of
the evidence that attorney’s fees and costs “would provide the
jurisdictional amount in controversy.” He found, as well, that “the
mere likelihood of punitive damages, without more, does not give
rise to federal jurisdiction.” (citing his earlier opinion in
Landmark
Corp.
v.
Apogee
Coal
Co.,
945
F.Supp.
932,
936-37
(S.D.W.Va. 1996)). He also found that punitive damages, as well as
attorney’s fees and costs, were simply too speculative at that
point to provide the basis for jurisdiction. The Court agrees with
this reasoning.
1
In addition to violations of the WVCCPA, the claims there
included bad faith, severe emotional distress, and failure to
adequately supervise.
8
WHITE, ET AL., V. MACY’S, ET AL.
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Similarly, the defendants here have failed to provide adequate
evidence establishing that the amount in controversy has been met.
Although they ask the Court to rely on maximum multipliers affirmed
in other cases, they have not established that punitive damages or
attorney’s fees are more likely than not even to be awarded, and,
if so, for what possible amounts. In summary, the defendants want
the Court to assume an award for all economic and statutory damages
available, a non-economic award that is a multiplier of that
amount, a punitive damages award as high as nine times greater than
the compensatory damages, and an award for attorney’s fees as high
as $25,000 based on a comparison to an unrelated case. Even
accepting these speculative damages and multipliers, it remains
questionable whether this case would meet the threshold.
Finally, it should be noted that the plaintiffs tendered a
demand letter seeking $55,000 in damages. Courts give significant
deference
to
a
demand
letter
when
evaluating
the
amount
in
controversy. See Scaralto v. Ferrell, 826 F.Supp.2d 960, 967
(S.D.W.Va. Nov. 29, 2011) (“The amount in controversy is not what
the plaintiff, his lawyer, or some judge thinks a jury would award
the plaintiff assuming he prevails on the merits. It is what the
plaintiff
claims
to
be
entitled
9
to
or
demands.”)
(citations
WHITE, ET AL., V. MACY’S, ET AL.
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omitted). Here, the Court’s judgment is informed by the fact that
the Whites have valued their case at $55,000, a presumptively
optimistic amount, as it is their first demand.
III. CONCLUSION
For the reasons discussed, the Court concludes that the
potential recoveries asserted by the defendants are too speculative
at this point to justify jurisdiction; accordingly, it GRANTS the
plaintiffs’ motion and REMANDS this case to the Circuit Court of
Hancock County, West Virginia.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the Circuit Court of Hancock County,
West Virginia.
It further DIRECTS the Clerk to enter a separate
judgment order, and to remove this case from the Court’s active
docket.
DATED: May 23, 2016
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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