Christopher et al v. Miller et al
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO REMAND, DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO AMEND ANSWER AND DENYING AS MOOT PLAINTIFFS' MOTION TO STAY: Granting 5 Motion to Remand; Denying Without prejudice 6 Motion for Leave to File Amended Answer; and Denying as Moot 8 Motion to Stay; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 2/2/17. (Cert. copy to Circuit Ct. of Ohio Co.)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALEXANDRA C. CHRISTOPHER
and MICHAEL R. CLEMENS,
Civil Action No. 5:16CV188
CHRISTOPHER J. MILLER and
HECKMANN WATER RESOURCES (CVR), INC.
d/b/a NUVERRA ENVIRONMENTAL SOLUTIONS,
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ MOTION TO REMAND,
DENYING WITHOUT PREJUDICE
DEFENDANTS’ MOTION TO AMEND ANSWER AND
DENYING AS MOOT PLAINTIFFS’ MOTION TO STAY
The plaintiffs originally filed their complaint in the Circuit
Court of Ohio County, West Virginia.
ECF No. 1.
Alexandra C. Christopher (“Christopher”) and Michael R. Clemens
(“Clemens”), are citizens of West Virginia.
One named defendant,
Christopher J. Miller (“Miller”), is a citizen of Ohio.
business as Nuverra Environmental Solutions (“Nuverra”), is a Texas
corporation with its principal place of business in Arizona.
According to the amended complaint, the defendants’ negligence
caused a motor vehicle accident that resulted in injuries to the
The amended complaint is based on facts asserting that Miller
negligently caused the vehicle he was operating to collide with the
plaintiffs’ vehicle, in which Christopher was the driver and
Clemens was a passenger. The amended complaint asserts that Miller
was acting within the course and scope of his employment with
Nuverra, which the amended complaint asserts was also negligent in
its supervision and instruction of Miller.
As a result of the
suffered various injuries, “some of which are reasonably certain to
be permanent in nature.”
The plaintiffs allege that Christopher suffered injuries to
her head, neck, back, chest, left shoulder, left arm, and various
other body parts.
They allege that Clemens suffered injuries to
his head, neck, back, right elbow, left wrist, knees, and various
other body parts.
The plaintiffs further allege that some of both
medical expenses, lost wages and diminished earning capacity, and
various forms of pain and suffering.
For relief, the plaintiffs
seek compensatory and general damages in an amount within the
jurisdiction of the state court and to be determined by the jury,
further specific or general relief as may become apparent as this
matter progresses, and other relief as the Court deems proper.
The defendants removed this action to this Court on December
ECF No. 1.
In the notice of removal, the defendants
assert that the amount in controversy requirement is satisfied
because the plaintiffs alleged in their complaint to have suffered
permanent injuries, physical pain, mental and emotional anguish,
annoyance, inconvenience, and diminishment in their ability to
fully function and enjoy life.
The notice of removal also notes
that the plaintiffs have claimed lost wages and a diminishment in
their earning capacity and ability to earn a living.
The plaintiffs timely filed this motion to remand. ECF No. 5.
The plaintiffs argue that the defendants have failed to satisfy the
amount in controversy requirement.
The plaintiffs state that the
defendants have failed to point to any evidence supporting their
allegation that the plaintiffs’ claims have a value exceeding
$75,000.00 or to otherwise quantify the plaintiffs’ claims.
plaintiffs further note that they did not allege any special
damages in their complaint, and the defendants failed to offer any
independent proof of special damages.
The plaintiffs argue that
allegations of general damages are not enough to satisfy the burden
of proving federal jurisdiction. For those reasons, the plaintiffs
believe the amount in controversy requirement remains unsatisfied
and, therefore, seek to remand this civil action.
The defendants filed a response in opposition.
ECF No. 7.
The defendants argue that competent proof is not required to
satisfy the amount in controversy argument.
Rather, the amount in
controversy must be proven by only a preponderance of the evidence.
The defendants next argue that, in their notice of removal, they
cite to the plaintiffs’ allegations of injuries and damages as
proof of the jurisdictional amount.
Although the plaintiffs have
not alleged a sum certain, the defendants argue that the Court is
permitted to look at the type and extent of the plaintiffs’
injuries and the possible damages recoverable in its independent
analysis of whether the amount in controversy is satisfied.
defendants state that the plaintiffs have stressed the permanency
of their alleged injuries, the need for future treatment, and the
likelihood of future medical bills and lost earning capacity.
defendants also point out that the plaintiffs control the requisite
proof of the amount in controversy but have not included that proof
in their amended complaint.
Based on the allegations of the
complaint, the defendants believe that the amount in controversy is
In the alternative, the defendants request limited discovery
on the subject of the amount in controversy, arguing again that the
plaintiffs control the information necessary to prove the amount in
The plaintiffs filed a reply to the defendants’ response in
ECF No. 9.
The plaintiffs again assert that the
defendants have offered no proof of the value of the plaintiffs’
claims, and that the allegations from the plaintiffs’ complaint are
As to the defendants’ request for jurisdictional
discovery, the plaintiffs argue that discovery is not authorized
after the amount in controversy has been contested.
The defendants have also filed a motion for leave to amend
their answer and affirmative defenses to assert a counterclaim
ECF No. 6.
In response to that motion, the
plaintiffs filed a motion to stay briefing of the defendants’
motion for leave to amend until the Court first addresses the
jurisdictional issues raised in the plaintiffs’ motion to remand.
ECF No. 8.
For the reasons set forth below, the plaintiffs’ motion to
remand (ECF No. 5) is GRANTED, the defendants’ motion for leave to
amend their answer and affirmative defenses (ECF No. 6) is DENIED
WITHOUT PREJUDICE, and the plaintiffs’ motion to stay briefing (ECF
No. 8) is DENIED AS MOOT.
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.
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, exclusive of interest
and costs pursuant to 28 U.S.C. § 1332(a).
However, if federal
citizenship, such an action “shall be removable only if none of the
. . . defendants is a citizen of the State in which such action is
Tomlin v. Office of Law Enf’t Tech. Commercialization,
Inc., No. 5:07CV42, 2007 WL 1376030, at *1 (N.D. W. Va. May 7,
The party seeking removal bears the burden of establishing
See In re Blackwater Sec. 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).
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. Ala. 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., No. 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)).
This Court recognizes that “a defendant’s notice of removal
need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.”
Nonetheless, this Court has previously found that Dart does not
require it to grant jurisdictional discovery and, thus, this Court
has routinely exercised its discretion to deny such requests.
Antal v. State Farm Mut. Ins. Co., No. 5:15CV36, 2015 WL 2412358,
at *3 (N.D. W. Va. May 20, 2015) (denying the plaintiff’s request
contained in . . . 28 U.S.C. § 1446(c)(3)(A) is related to
discovery taken in the state court, not discovery that is taken in
the federal court after removal”); O’Brien v. Falcon Drilling Co.,
No. 5:15CV13, 2015 WL 1588246, at *6 (N.D. W. Va. Apr. 9, 2015)
discovery in the state court, a filing by the plaintiff, or some
The facts show that both plaintiffs are citizens of West
Miller is a citizen of Ohio, and Nuverra is a Texas
corporation with its principal place of business in Arizona. Based
on those facts, the parties are diverse. 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 plaintiffs’ 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 plaintiffs’
allegations about their serious and possibly permanent injuries.
The defendants merely assert that the future medical bills and the
plaintiffs’ lost earning capacity will exceed the jurisdictional
The defendants fail to state any damages amount with any
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 completely unknown and speculative at best.
Speculation regarding the amount in controversy requirement fails
to satisfy the burden that the removing party bears.
Blackwater Sec. Consulting, LLC, 460 F.3d at 583.
See In re
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.
Hartley, 187 F.3d at 422; Mulcahey, 29
Here, doubts exist as to that jurisdiction.
This Court also denies the defendants’ request to conduct
jurisdictional discovery as to the amount in controversy.
stated earlier, this Court has previously declined to exercise its
discretion to grant such requests in light of the fact that this
discovery is more appropriate in state court.
prevents the defendants from filing a second notice of removal
should the case become removable within one year.
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.”).
Accordingly, the plaintiffs’ motion to remand is granted, and
the case is remanded to the Circuit Court of Ohio County, West
Because this Court does not have jurisdiction over this
matter, the defendants’ motion for leave to file an amended answer
Additionally, as the motion to remand has been granted, the
plaintiffs’ motion to stay briefing is denied as moot.
For the reasons set forth above, the plaintiffs’ motion to
remand (ECF No. 5) is GRANTED.
Accordingly, it is ORDERED that
this civil action be REMANDED to the Circuit Court of Ohio County,
It is further ORDERED that this civil action be
DISMISSED and STRICKEN from the active docket of this Court.
Additionally, the defendants’ motion for leave to file an amended
answer and affirmative defenses (ECF No. 6) is DENIED WITHOUT
PREJUDICE and the plaintiffs’ motion to stay briefing (ECF No. 8)
is DENIED AS MOOT.
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.
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
February 2, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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