Chanze v. Air Evac EMS, Inc.
Filing
21
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S 13 MOTION TO REMAND. The plaintiff shall have fourteen (14) days from the date of the entry of this order to file any response to defendant Air Evacs 5 motion to dismiss. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/23/18. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TROY CHANZE, SR., on his own
behalf and on behalf of all
others similarly situated,
Plaintiff,
v.
Civil Action No. 5:18CV89
(STAMP)
AIR EVAC EMS, INC.,
a Missouri corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
This case arises out of alleged breach of implied contract
between the plaintiff, Troy Chanze, Sr. (“Chanze”), and defendant
Air Evac EMS, Inc. (hereinafter, “Air Evac”).
The plaintiff
originally filed his class action complaint in the Circuit Court of
Wetzel County, West Virginia against the defendant. The plaintiff’s
class
action
complaint
seeks
money
damages,
restitution
and
disgorgement, declaratory and injunctive relief, and attorneys’
fees on behalf of the plaintiff Chanze individually and on behalf
of a purported class of individuals who received Air Evac’s medical
transport services from a location in West Virginia to a healthcare
facility over the past five years.
In the first cause of action of
the complaint, Chanze brings a breach-of-implied-contract claim,
asserting that the rate he was charged for Air Evac’s air ambulance
services is unreasonable as a matter of West Virginia law.
In the
second cause of action of the complaint, Chanze seeks declaratory
and injunctive relief to bar Air Evac from charging its usual
billed rates for air ambulance transportation services.
I.
Background
Defendant Air Evac removed the civil action to this Court on
May 17, 2018.
ECF No. 1.
Defendant Air Evac filed a motion to
dismiss (ECF No. 5) on May 24, 2018 asserting that the class action
complaint is preempted in its entirety by the Airline Deregulation
Act of 1978, which preempts state-law claims “having the force and
effect of law related to a price, route, or service of an air
carrier.”
49 U.S.C. § 41713(b)(1).
On June 1, 2018, plaintiff filed a motion to remand (ECF No.
13) this case to the Circuit Court of Wetzel County, West Virginia.
On the same date, plaintiff also filed a motion to stay briefing
(ECF No. 14) of Air Evac’s motion to dismiss until the Court first
addresses the jurisdictional issues raised in plaintiff’s motion to
remand. On June 6, 2018, this Court granted the plaintiff’s motion
to stay briefing on the motion to dismiss.
ECF No. 16.
Plaintiff’s motion to remand (ECF No. 13), filed pursuant to
28 U.S.C. § 1446 and 28 U.S.C. § 1332, asserts the defendant cannot
meet the following requirements under the Class Action Fairness Act
(“CAFA”): (1) that the class must consist of 100 or more members;
and (2) that the amount in controversy must exceed $5,000,000.00.
First, the plaintiff argues that the defendant has merely asserted
that the class exceeds 100 members without offering any supporting
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evidence.
ECF No. 13 at 4 (citing Dart Cherokee Basin Operating
Co., LLC v. Owens, 135 S. Ct. 547, 553-54 (2014)).
The plaintiff
contends that this is not enough to establish jurisdiction, and
states “[u]nless and until the Defendant provides the Court with
provable data demonstrating that the class size does, in fact,
exceed
the
remand.”
100-member
minimum,
ECF No. 13 at 5.
the
Plaintiff
is
entitled
to
Further, the plaintiff argues that the
defendant has not established that the amount in controversy
exceeds $5,000,000.00 because the defendant merely speculates on an
amount based on the defendant’s estimate of the total number of
class members and has provided “no data at all” to support its
calculation of the amount in controversy.
ECF No. 13 at 5-6.
Plaintiff argues that “[w]ithout affidavits or supporting data
confirming what the impact of an injunction would actually be,
however, the Defendant cannot meet its federally imposed burden of
proof.”
ECF No. 13 at 7-8.
Defendant filed a response to the plaintiff’s motion to remand
(ECF No. 17) and contends that it properly stated its grounds for
CAFA removal in its notice of removal attached the declaration of
Joshua
Redfield
(ECF
No.
17-1)
as
“evidence
sufficient
to
establish, by a preponderance of the evidence, the jurisdictional
facts required by CAFA.”
ECF No. 17 at 1.
Defendant adds that
“the Supreme Court requires no evidentiary submission at the notice
of removal stage.”
ECF No. 17 at 1.
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The defendant argues that it
has already submitted proof of the number of emergency transports
during
the
class
period,
and
that
this,
combined
with
the
plaintiff’s allegations, establishes that the class exceeds 100
members.
ECF No. 17 at 6.
Further, the defendant argues it can
establish that the amount in controversy exceeds $5,000,000.00
exclusive of interest or costs by multiplying the individual damage
amounts pled in the complaint by the number of persons in an
alleged class.
“the
value
of
ECF No. 17 at 7.
Plaintiff’s
Lastly, defendant contends that
claim
for
injunctive
relief
here
independently establishes an amount in controversy exceeding $5
million.”
ECF No. 17 at 9.
The plaintiff did not file a reply to the defendant’s response
in opposition to the plaintiff’s motion to remand.
The plaintiff’s motion to remand is now ripe for decision.
For the following reasons, the plaintiff’s motion to remand (ECF
No. 13) is denied.
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.
The
Class Action Fairness Act (“CAFA”) confers original jurisdiction on
district courts over class actions in which (1) “the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs,” 28 U.S.C. § 1332(d)(2); (2) “any member of a
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class of plaintiffs is a citizen of a State different from any
defendant,” id. § 1332(d)(2)(A); and (3) “there are 100 or more
plaintiff class members,” id. § 1332(d)(5)(B).
West Virginia ex
rel. McGraw v. CVS Pharm., Inc., 646 F.3d 169, 174 (4th Cir. 2011).
The claims of individual class members may be aggregated to meet
the $5,000,000.00 amount in controversy.
28 U.S.C. § 1332(d)(6).
The burden of establishing the $5,000,000.00 jurisdictional
threshold amount in controversy rests with the defendants.
See
Strawn v. AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008)
(concluding that CAFA did not shift the burden of persuasion, which
remains
upon
the
party
seeking
removal).
This
Court
has
consistently applied the “preponderance of evidence” standard to
determine whether a removing defendant has met its burden of
proving the amount in controversy.
United
States
Court
of
Appeals
The well-settled test in the
for
the
Fourth
Circuit
for
calculating the amount in controversy is “‘the pecuniary result to
either party which [a] judgment would produce.’” Dixon v. Edwards,
290 F.3d 699, 710 (4th Cir. 2002) (quoting Gov’t Employees Ins. Co.
v. Lally, F.2d 568, 569 (4th Cir. 1964)).
Accordingly, in this case, the defendants must show by a
preponderance of the evidence that the pecuniary interest, in the
aggregate, of either party is greater than $5,000,000.00.
Under
the statute, “one defendant may remove the entire action, including
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claims against all defendants.” Lowery v. Ala. Power Co., 483 F.3d
1184, 1196 (11th Cir. 2007).
Removal
jurisdiction
is
strictly
construed.
If
jurisdiction is doubtful, the federal court must remand.
federal
Mulcahey
v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994).
III.
Discussion
There is no dispute that complete diversity exists.
The only
issue is whether CAFA’s jurisdictional requirements are satisfied
here.
Based on the record before this Court, defendant Air Evac
has met its burden to establish CAFA jurisdiction and thus, the
plaintiff’s motion to remand must be denied.
This Court notes “no antiremoval presumption attends cases
invoking CAFA, which Congress enacted to facilitate adjudication of
certain class actions in federal court.”
Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S. Ct. 547, 554.
“While a
defendant filing a notice of removal under 28 U.S.C. § 1446(a) need
only allege federal jurisdiction with a short plain statement—just
as federal jurisdiction is pleaded in a complaint—when removal is
challenged, the removing party bears the burden of demonstrating
that removal jurisdiction is proper.” Strawn, supra at 297 (citing
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th
Cir. 2008)).
As specified in § 1446(a), a defendant’s notice of
removal need include only a plausible allegation that the amount in
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controversy exceeds the jurisdictional threshold.
establishing
the
amount
in
controversy
is
Id.
Evidence
required
by
§ 1446(c)(2)(B) only when the plaintiff contests, or the Court
questions, the defendant’s allegation.
In
this
case,
once
plaintiff
Id.
contested
the
amount
in
controversy by filing his motion to remand, the defendant appended
to its response to plaintiff’s motion a declaration of the Manager
of Compliance and Audit for Revenue Cycle for Air Evac EMS, Inc.,
Joshua Redfield (ECF No. 17-1).
In his declaration, Mr. Redfield
states, in part:
2.
In my role as Manager of Compliance and Audit for
Revenue Cycle, I have personal knowledge regarding air
ambulance services provided by Air Evac in West Virginia
and billing activity associated with those services.
3.
I have reviewed the complaint filed by Plaintiff
Troy Chanze, Sr. I have also reviewed internal transport
records for Air Evac emergency transports in West
Virginia during the relevant time period.
4.
From April 16, 2013 to April 16, 2018, Air Evac
provided emergency transports for at least 6,000 patients
from a location in West Virginia to a healthcare
facility.
5.
The total charges associated with the air ambulance
services provided to the more than 6,000 patients exceed
$200 million.
ECF No. 17-1.
In regard to whether the proposed class of plaintiffs would
include at least 100 members, Air Evac has submitted proof to
establish the number of emergency transports during the class
period by attaching the declaration of Joshua Redfield, which
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states, that Air Evac provided emergency air transportation to at
least 6,000 individuals from a location in West Virginia to a
healthcare facility during the period of April 16, 2013 to April
16, 2018.
The defendant then uses this information to calculate the
amount in controversy, stating: “[m]ultiplying 6,000 transports
during
the
class
period
by
$16,611—the
smallest
purported
overcharge after accounting for the write off of ancillary charges
that can be derived from Plaintiff’s own allegations-yields at
least $99,666,000.”
This
Court
ECF No. 17 at 8.
finds
that
multiplying
the
individual
damage
amounts pled in the complaint by the number of persons in an
alleged class is a reasonable method for determining the amount in
controversy.
See Kemper v. Quicken Loans, Inc., No. 5:13-CV-91,
2013 WL 5504152, at *4 (N.D. W. Va. Oct. 2, 2013) (quotations and
citation omitted).
This Court finds that the pleadings and declaration filed in
this case are sufficient to demonstrate, under the Class Action
Fairness Act and by a preponderance of the evidence, that the class
of plaintiffs consists of 100 or more members and that the amount
in controversy exceeds $5,000,000.00.
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IV.
For
the
above
reasons,
Conclusion
this
Court
finds
that
it
has
jurisdiction in this civil action under 28 U.S.C. § 1332(d).
Accordingly, the plaintiff’s motion to remand (ECF No. 13) is
DENIED.
Further, as stated in this Court’s previous order (ECF No.
16), the plaintiff shall have fourteen (14) days from the date of
the entry of this order to file any response to defendant Air
Evac’s motion to dismiss (ECF No. 5).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
July 23, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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