Cecil v. Axiall Corporation
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND: Granting 6 Motion to Remand to State Court; Case to be remanded to Circuit Court of Marshall Co. and Dismissed and Stricken from active docket of this Court; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 4/13/18. (copy to Marshall Co. Circuit Court Clerk)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LAWRENCE BRADLEY CECIL,
Civil Action No. 5:18CV8
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
The plaintiff, Lawrence Bradley Cecil, originally filed his
complaint in the Circuit Court of Marshall County, West Virginia,
against the defendant, Axiall Corporation.
The plaintiff alleges
in his complaint that a rail tanker located inside the defendant’s
substantial amount of liquid chlorine.
The plaintiff further
alleges that, as a result of the liquid chlorine leak, a large
chemical cloud was created that caused the toxic substance to
travel from the Natrium plant to the surrounding communities,
including the plaintiff’s property.
The plaintiff then alleges
that he was forced to evacuate his home and leave the area to avoid
exposure to the toxic chemical, and that the chemical exposure
damaged his real and personal property and injured him personally.
The complaint makes claims for (1) negligence, (2) trespass, (3)
private nuisance, (4) public nuisance, (5) strict liability, and
(6) res ipsa loquitur.
The plaintiff seeks compensatory damages,
general damages, punitive damages, pre-judgment and post-judgment
interest, and attorneys’ fees and costs.
The defendant removed the civil action to this Court.
notice of removal, the defendant asserts that this Court has
jurisdiction over the matter pursuant to 28 U.S.C. § 1332 because
controversy exceeds $75,000.00, exclusive of interests and costs.
The defendant states that there is complete diversity because the
plaintiff is a resident of West Virginia and the defendant is a
Delaware corporation with its principal office in Texas.
defendant states that the amount in controversy exceeds $75,000.00
based on the plaintiff’s allegations as pled in the complaint.
The plaintiff then filed a motion to remand, in which he
argues that the defendant has failed to satisfy its burden of
exclusive of interests and costs.
The plaintiff points out that
the complaint does not include any specific monetary demand, but
rather generally lists the types of damages to which he might be
The plaintiff contends that the defendant has not met
its burden of proving that grounds exist for asserting federal
jurisdiction because it has “made no effort to quantify the
ECF No. 6 at 3.
The plaintiff further
contends that “merely reciting the damage allegations in the
Complaint is not proof of value.
It is merely speculation.”
(emphasis in original).
plaintiff’s motion to remand.
In response, the defendant points
out that the complaint alleges that the plaintiff has suffered
“‘serious and permanent injuries,’ damages for real and personal
property, annoyance, inconvenience, emotional and mental anguish,
stress, anxiety, a diminishment in his ability to enjoy life,
‘substantial’ costs, expenses and attorneys’ fees, and punitive
ECF No. 7 at 4 (emphasis in original).
states that the “[p]laintiff cleverly sought to avoid removal by
omitting any reference in the Complaint to the monetary value of
The defendant also notes that the plaintiff
did not accept its offer of a stipulation that the amount sought
was under $75,000.00 in return for the defendant’s agreement not to
oppose the motion to remand.
The plaintiff filed a reply to the defendant’s response in
In reply, the plaintiff argues that the defendant has
not come forward with any facts to meet its evidentiary burden of
proving that federal jurisdiction is proper. Rather, the plaintiff
contends that the defendant has only speculated as to the amount in
controversy by using words such as “extensive,” “serious,” and
The plaintiff also addresses the email exchange
attached to the defendant’s response.
The plaintiff clarifies
that, while he refused to sign the proposed stipulation, he did
offer to enter into settlement negotiations for amounts less than
$75,000.00. Lastly, the plaintiff argues that the mere presence of
his claim for punitive damages does not give rise to federal
For the reasons set forth below, the plaintiff’s motion to
remand is granted.
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)).
There is no dispute that complete diversity exists.
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 defendant fails
to demonstrate that the amount in controversy requirement has been
satisfied. The plaintiff’s complaint does not include any specific
monetary demand, but rather generally lists the types of damages to
which the plaintiff might be entitled.
The defendant’s notice of
removal simply recites the categories of damages the plaintiff
alleges in his complaint and summarily concludes that the amount in
allegations as pleaded in the Complaint.”
ECF No. 1 at 3.
Additionally, this Court finds that neither the plaintiff’s general
claim for punitive damages nor the plaintiff’s offer to enter into
settlement negotiations for “amounts less than $75,000” (ECF No.
7-2 at 1) demonstrates that the amount in controversy requirement
has been satisfied.
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
removal is improper. Also, as stated earlier, removal jurisdiction
is strictly construed, and, if federal jurisdiction is doubtful,
the federal court must remand. Hartley, 187 F.3d at 422; Mulcahey,
29 F.3d at 151.
Here, doubts exist as to that jurisdiction.
This Court notes the defendant’s argument that “[t]he Court is
not required to leave its common sense behind when evaluating the
amount in controversy.”
Mullins v. Harry’s Mobile Homes, 861 F.
Supp. 22, 24 (S.D. W. Va. 1994).
This Court finds that the
argument does not “relieve [the defendant] of its burden to provide
evidence on the amount in controversy.”
Hall v. Cliffs N. Am.
Coal, LLC, Civil Action No. 5:09-CV-00689, 2009 WL 4666484, at *2
“[a]lthough the Court ‘is not required to leave its common sense
behind,’ Mullins, 861 F. Supp. at 24, the defendant nonetheless
must give the Court something to which to apply its common sense.
In Mullins, the district court considered evidence of the contract
price and finance charges, along with the causes of action being
sought by the plaintiff.”
Hall, 2009 WL 4666484, at *2.
like in Hall, the defendant does not make “any factual allegations
or citations to the record to support its conclusion that the
amount in controversy meets or exceeds $75,000.”
The Court also notes, however, that nothing prevents the
defendant from filing a second notice of removal should the case
become removable within one year.
See 28 U.S.C. § 1446(b)(3)
(“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 plaintiff’s motion to remand is granted, and
the case is remanded to the Circuit Court of Marshall County, West
For the reasons set forth above, the plaintiff’s motion to
remand (ECF No. 6) is GRANTED.
Accordingly, it is ORDERED that
this civil action be REMANDED to the Circuit Court of Marshall
County, West Virginia.
It is further ORDERED that this civil
action be DISMISSED and STRICKEN from the active docket of this
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 Marshall County, West Virginia.
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
April 13, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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