Adkins et al v. Appalachian Fuels, LLC et al

Filing 12

MEMORANDUM OPINION AND ORDER granting the 4 MOTION to Remand; directing that each of these civil actions herein styled are remanded to the Circuit Court of Logan County; denying the request for costs and fees. Signed by Judge John T. Copenhaver, Jr. on 4/8/2013. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
GENEVA ADKINS,
Plaintiff,
v.

Civil Action No. 2:12-8071

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
MATTHEW ADKINS and
JENNIFER ADKINS
Plaintiffs,
v.

Civil Action No. 2:12-8530

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
CHERRY BLEVINS and
LEO COPELAND and
TAMMY COPELAND,
Plaintiffs,
v.

Civil Action No. 2:12-8531

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.

CLARKSON BROWNING and
TERESA BROWNING,
Plaintiffs,
v.

Civil Action No. 2:12-8532

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
ELIZABETH CALLAWAY,
Plaintiff,
v.

Civil Action No. 2:12-8533

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
VIRGINIA ELLIXSON,
Plaintiff,
v.

Civil Action No. 2:12-8534

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
JAMES FLEMING and
PATRICIA FLEMING,
Plaintiffs,
v.

Civil Action No. 2:12-8535

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
2

ROBERT GREER and
BARBARA GREER,
Plaintiffs,
v.

Civil Action No. 2:12-8536

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
ROBERT GREER, JR. and
REMA GREER,
Plaintiffs,
v.

Civil Action No. 2:12-8537

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
WILLIAM JENKINS,
Plaintiffs,
v.

Civil Action No. 2:12-8538

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
JAMES LOWE and
ALISA SHEPARD,
Plaintiffs,
v.

Civil Action No. 2:12-8539

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
3

GREGORY MULLINS and
WILLA MULLINS,
Plaintiffs,
v.

Civil Action No. 2:12-8540

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
MARLENE NELSON,
Plaintiff,
v.

Civil Action No. 2:12-8541

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
RAYMOND PORTER, in his capacity
as Executor of THE ESTATE OF MABEL PORTER,
Plaintiff,
v.

Civil Action No. 2:12-8542

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
LARRY SPRY and
THELMA SPRY
Plaintiffs,
v.

Civil Action No. 2:12-8543

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
4

OLEDA WORKMAN,
Plaintiff,
v.

Civil Action No. 2:12-8544

APPALACHIAN FUELS, LLC, and
JOHN DOE ENTITIES 1-5,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending in each of the above-styled actions are the
plaintiffs' motions to remand, filed December 12, 2012.
As noted in the court's January 24, 2013, order,
counsel have advised that the briefing respecting the sixteen
motions to remand is materially identical save for one
variation.

In the following six cases, pre-removal negotiations

transpired which may bear on the disposition of the motions to
remand ("class one cases"):
Plaintiff(s)

Civil Action

Geneva Adkins
Matthew & Jennifer Adkins
Clarkson & Teresa Browning
Virginia Ellixson
James Lowe & Alisa Shepard
Raymond Porter, Executor

2:12-08071
2:12-08530
2:12-08532
2:12-08534
2:12-08539
2:12-08542

In the remaining ten cases ("class two cases"), no pre-removal
negotiations occurred.

5

In the January 24, 2013, order, the court, in
accordance with counsels' agreement, selected at random one set
of remand briefing from one of the cases falling in class one
and one set of remand briefing from one of the cases falling in
class two and, based upon those two separate sets of briefs,
will now resolve the entirety of the remand issues respectively
presented in each of the two classes.
The remand issues presented in the class one cases
will be resolved by reference solely to the briefing filed in
Geneva Adkins v. Appalachian Fuels, LLC, No. 2:12-8071.

The

remand issues presented in the class two cases will be resolved
by reference solely to the briefing filed in Cherry Blevins et
al. v. Appalachian Fuels, LLC, No. 2:12-8531.

I.

The plaintiffs are West Virginia residents.

Defendant

Appalachian Fuels, LLC, ("Appalachian Fuels") was at all
relevant times a Kentucky limited liability company.

On June

12, 2010, Appalachian Fuels caused water to improperly drain
from its surface mine into the Miller Branch area in Logan
County, West Virginia.

The water damaged the plaintiffs'

properties.
6

On May 23, 2012, the plaintiffs instituted these
actions in the Circuit Court of Logan County against Appalachian
Fuels

and unspecified John Doe entities.

The plaintiffs

discuss the structure of the litigation at that time in their
memorandum in support of remand:
Pursuant to Rule 3(a) of the West Virginia Rules of
Civil Procedure, separate civil actions by each
Plaintiff were not only appropriate, but required. The
Logan County Circuit Court properly required separate
filing fees to be paid for each action and assigned
separate civil action numbers, but did allow a “Master
Complaint” to be filed with the names of each
plaintiff included on the case style. The case did not
proceed in State Court long enough to address whether
there would be consolidation of discovery or Trial of
the separate individual Plaintiffs’ cases.
(Pls.' Mem. in Supp. of Rem. at 2 n.1).
As noted, all of the plaintiffs appeared in the style
of a master complaint and jurisdictional allegations were made
as to each.

The single count contained in the master complaint

appears to allege both negligence and nuisance.1

The plaintiffs

assert that they have "suffered severe damage to their property,
personal property, residences, and other general and special
damages, as may be later proven."
1

(Compl. ¶ 22).

Appalachian Fuels suggests that the plaintiffs are
additionally pursuing a claim under the citizen-suit provision
of the West Virginia Surface Coal Mining and Reclamation Act.
The plaintiffs have disavowed any such claim, asserting they
have pled "only claims that are expressly permitted by the West
Virginia Common Law." (Pls.' Resp. to Def.'s Mot. to Dism. at
2).
7

Respecting the damages to be awarded, Appalachian
Fuels is currently a Chapter 11 debtor.

On April 11, 2012,

however, the bankruptcy court entered an agreed lifting order
allowing this litigation to proceed to the extent of liability
insurance coverage.

Consistent with the agreed lifting order,

plaintiffs have confined their request for damages to the
proceeds of any applicable insurance coverage, including, but
not limited to, any liability insurance and umbrella general
liability coverage.

The applicable limit of insurance is

$1,000,000.
On November 21, 2012, defendants, relying upon the
master complaint, filed a single notice of removal listing all
of the plaintiffs in one action.

Appalachian Fuels thus

effectively, although apparently inadvertently, removed sixteen
separate civil actions.

It explains as follows in its response

to plaintiffs' remand motion:
Appalachian Fuels relied in good faith on the
Complaint, which gave the impression that
Plaintiffs were uniting in a consolidated manner to
assert their claims against Appalachian Fuels’
insurance proceeds. Appalachian Fuels based its
reliance on the facts that neither the Complaint
nor any other notification by Plaintiffs lead it to
the understanding that the Complaint was only a
“Master Complaint”, which was supposed to be
represented as an individual filing for each
Plaintiff.
(Def.'s Resp. to Rem. at 4).

Nevertheless, the plaintiffs

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assert the amount in controversy must be proven in each
individual case, some of which contain multiple plaintiffs.
On December 5, 2012, the court directed the Clerk to
reflect on the record the actual state of affairs in the circuit
court prior to removal.

The Clerk was directed to open a

separate civil action ("separated civil actions") for each
severable plaintiff or group of plaintiffs in these matters that
existed in the circuit court on the date of removal.

The

notice of removal was deemed effective as to, and filed in, each
of the separated civil actions.
On December 12, 2012, plaintiffs moved to remand.
They

assert that the amount in controversy falls well below the

jurisdictional minimum when each case is viewed individually.
They additionally seek the costs and fees occasioned by the
removal.

To illustrate their view respecting the asserted

absence of the necessary amount in controversy, plaintiffs have
included in the record an email message in the Clarkson and
Teresa Browning action reflecting a pre-litigation settlement
demand of $55,000.

That is the highest demand encountered in

any of the class one cases.

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II.

The court is vested with original jurisdiction of all
actions between citizens of different states when the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). The statute
establishing diversity jurisdiction is to be strictly construed.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941);
Healy v. Ratta, 292 U.S. 263, 270 (1934); Schlumberger Indus.,
Inc. v. Nat'l Surety Corp., 36 F.3d 1274, 1284 (4th Cir.1994).
The party seeking removal bears the burden of establishing
federal jurisdiction and, if challenged, also bears the burden
of proving that federal jurisdiction was properly invoked.
Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th
Cir. 1994).
Just last month in Francis v. Allstate Ins. Co., No.
12-1563, --- F.3d ----, 2013 WL 829141 (4th Cir. Mar. 7, 2013),
our court of appeals observed the nature of the burden imposed
on the removing party when a question arises respecting
satisfaction of the jurisdictional minimum:
The removability of a case “depends upon the state of
the pleadings and the record at the time of the
application for removal . . . .” If diversity of
citizenship, under 28 U.S.C. § 1332(a), provides the
grounds for removal, then “the sum demanded in good
faith in the initial pleading shall be deemed to be
the amount in controversy . . . .” 28 U.S.C. §
1446(c)(2). If a complaint “does not allege a specific
10

amount of damages, the removing defendant must prove
by a preponderance of the evidence that the amount in
controversy exceeds [$75,000].” De Aguilar v. Boeing
Co., 11 F.3d 55, 58 (5th Cir. 1993).
Id. at *4.
Appalachian Fuels essentially rests their amount-incontroversy hopes on a single proposition, namely, that
aggregation is permitted when a set of plaintiffs unite to
enforce a single title or right in which they have a common
undivided interest.

That is an accurate statement of the law.

It is not, however, representative of the factual circumstances
now confronting the court.
Appalachian Fuels asserts that the plaintiffs may only
seek the insurance policy proceeds from the common fund of
Appalachian Fuels’ coverage limit, which they assert results in
a common and undivided interest permitting aggregation.

While

the claims of the several plaintiffs do arise from a single
cause, they are not undivided claims with respect to the several
properties.

See Feikema v. Texaco, Inc., 16 F.3d 1408, 1412

(4th Cir. 1994) (case alleging that a plume of oil which leaked
from a nearby petroleum distribution terminal damaged
plaintiffs' properties and the court of appeals observing "While
the claims of the several plaintiffs do arise from a single
cause, they are not undivided claims with respect to the several

11

properties."); see also Charles A. Wright et al., Fed. Prac. &
Proc. § 3704 (4th ed. elec. 2013) ("If two plaintiffs each have
a $38,000 non-federal claim against a single defendant, . . . it
is equally clear that they may not aggregate their claims in a
single action for amount in controversy purposes and may not sue
in a federal court no matter how similar the claims may be so
long as the claims are regarded as 'separate and distinct.'").
It is true that if a coverage question arose against
the insurer on the applicable policies and the plaintiffs sued
collectively, aggregation might be appropriate in this circuit.
See Manufacturers Cas. Ins. Co. v. Coker, 219 F.2d 631, 633 (4th
Cir. 1955).

Those are not, however, the circumstances
In this action, individual plaintiffs instituted

presented.

separate actions against a tortfeasor which were "combined"
solely in the sense that a master complaint was authorized for
administrative convenience.

In sum, the controversy is not the

coverage amount available under the policy but, rather, whether
the tortfeasor perpetrated the harm alleged and the resulting
damages.

Aggregation is thus inappropriate.

Again, the master

complaint is best understood as an administrative device to aid
efficiency and economy and not one upon which the court can,

12

through fictive aggregation, arrive at the jurisdictional
amount.

It is, accordingly, ORDERED that the motions to remand

in the above-styled cases be, and hereby are, granted.

It is

further ORDERED that each of these civil actions be, and hereby
are, remanded to the Circuit Court of Logan County.2
The Clerk is directed to forward a copy of this order
to counsel of record and any unrepresented parties.
DATED:

April 8, 2013

John T. Copenhaver, Jr.
United States District Judge

2

The court denies the request for costs and fees pursuant to
28 U.S.C. § 1447(c). Appalachian Fuels failed to demonstrate
removal jurisdiction. The confusion presented by the master
complaint, however, leads to the conclusion that removal was not
objectively unreasonable. See Martin v. Franklin Cap. Corp., 546
U.S. 132, 141 (2005) (“Absent unusual circumstances, courts may
award attorney's fees under § 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking
removal.”). The court, accordingly, ORDERS that the request for
costs and fees be, and it hereby is, denied.
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