Tabor et al v. Tabor et al

Filing 19

MEMORANDUM OPINION & ORDER granting plaintiff's [50 MOTION to Remand Case to Circuit Court of Kanawha County; denying Defendant Rick Mullins' 4 MOTION for Costs and Attorneys' Fees; this case is remanded to the Circuit Court of Kanaw ha County; directing defendant Teressa Tabor to pay the plaintiffs' costs and attorney's fees incurred in defending removal; further directing plaintiffs to file within 10 days, in this court, an accounting for time spent, costs incurred, and the rate charged for fees incurred in this matter. Signed by Judge Joseph R. Goodwin on 10/15/2013. (cc: attys; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TERI TABOR, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-cv-20643

TERESSA TABOR, et al.,
Defendants.

MEMORANDUM OPINION & ORDER
Pending before the court is the plaintiffs’ Motion to Remand [Docket 5] and Defendant
Rick Mullins’ Motion for Costs and Attorney’s Fees [Docket 4]. For the reasons discussed below,
the plaintiffs’ Motion to Remand [Docket 5] is GRANTED, and Defendant Rick Mullins’ Motion
for Costs and Attorney’s Fees [Docket 4] is DENIED. Defendant Teressa Tabor is ORDERED to
pay the plaintiffs’ just costs and attorney’s fees incurred in defending removal. The plaintiffs are
DIRECTED to file within ten days, in this court, an accounting for time spent, costs incurred, and
the rate charged for fees incurred in this matter.
I.

Facts and Procedural History
This case arises out of the death of Robert C. Tabor. The plaintiffs are Mr. Tabor’s two

children, Teri Tabor and Robert Christopher Tabor, both from previous marriages. The plaintiffs
are both West Virginia residents. Defendant Teressa Tabor, Mr. Tabor’s wife, is a South Carolina
resident. Defendant Rick Mullins, a friend of Mr. Tabor, is a West Virginia resident. Mr. Tabor
passed away on February 1, 2012, and he died intestate. The plaintiffs allege that “Defendant

Teressa Tabor has seized, possesses or otherwise has access to all property, whether real or
personal, that should be included in the estate, denying Plaintiffs access to the same. Moreover,
Defendant has taken such property out of West Virginia in an intentional and malicious attempt to
prevent Plaintiffs from making a claim to the property and/or the estate.” (First Am. Compl.
[Docket 14-2], ¶ 8). The plaintiffs allege that Mr. Mullins was “involved with the collection and
sale of the personal property of Mr. Tabor.” (Id.).
The complaint alleges four counts. Count I asserts that, “the intentional and malicious acts
of defendants, Teressa Tabor and Rick Mullins, constitute an intentional and personal tort against
plaintiffs.” (Id. ¶ 11). Count II does not appear to allege an independent cause of action. Instead, it
states that the defendants “acted in an extreme and outrageous manner toward Plaintiffs in
committing intentional and malicious acts against Plaintiffs.” (Id. ¶ 14). Count III claims that the
defendants took possession of personal property that belonged to the plaintiffs and transported it
out of West Virginia. (Id. ¶ 17). Finally, Count IV alleges that Ms. Tabor has been named the
Administratrix of Mr. Tabor’s estate in another jurisdiction and therefore breached her fiduciary
duty. (Id. ¶ 19-20). The plaintiffs seek “the damages against Defendants for actual financial loss as
well as reasonable damages for pain, humiliation, embarrassment, degradation, emotional distress,
mental anguish, annoyance and inconvenience, in an amount to be determined by the jury in the
trial of this action, as well as for attorney fees, costs and any other remedy allowable by law.” (Id.
¶ 22).
This is the second motion to remand I have decided in this matter. I granted the first motion
to remand on April 26, 2012 (Case No. 2:12-cv-00415, Mem. Op. & Order [Docket 17]) because I
determined that the amount in controversy was insufficient to confer federal jurisdiction. I found
that
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the defendant has failed to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000. First, the plaintiffs’ request for relief
does not seek punitive damages. As the defendant points out, there are words in the
complaint indicating that the defendant’s actions were egregious, but I can only
speculate as to whether the plaintiffs will ask for punitive damages at some point in
the future.
(Id. at 4-5). After remand, the plaintiffs filed their First Amended Complaint, joining Rick Mullins,
a West Virginia resident, as a defendant. (See First Am. Compl. [Docket 14-2]). The amended
complaint is identical to the original complaint except for the joinder of Mr. Mullins and the
general allegation that Mr. Mullins was “involved with the collection and sale of the personal
property of Mr. Tabor.” (Id. at ¶ 8).
Defendant Teressa Tabor filed a Second Notice of Removal and Motion for Sanctions
[Docket 1] on July 18, 2013. The plaintiffs moved to remand this case on August 15, 2013. (See
Mot. to Remand [Docket 5]). The plaintiffs request an award of attorney’s fees and costs incurred
in attacking removal. (See id.). The defendants oppose the motion to remand, arguing that the
amount-in-controversy requirement is met because the plaintiffs are seeking punitive damages and
that Mr. Mullins was fraudulently joined to defeat complete diversity. (See Resp. in Supp. of Def.
Teressa Tabor’s Second Notice of Removal and Def. Rick Mullins’ Mot. for Costs and Attorney’s
Fees [Docket 4], at 2). Additionally, Mr. Mullins moved for sanctions against the plaintiffs for
fraudulently joining him. (See id.).
II. Legal Standard
An action may be removed from state court to federal court if it is one over which the
district court would have original jurisdiction. 28 U.S.C. § 1441(b). The burden of establishing
federal jurisdiction is placed on the party seeking removal. Mulcahey v. Columbia Organic Chems.
Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction raises significant federalism

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concerns and therefore must be strictly construed. Id. If federal jurisdiction is doubtful, remand is
necessary. Id. Removal in the instant case is premised on 28 U.S.C. § 1332(a), which states: “The
district courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interests and costs, and is between . . . citizens of
different States.” 28 U.S.C. § 1332(a).
The plaintiffs claim that the defendants have not met their burden of proving the amount in
controversy exceeds $75,000. Because there is no ad damnum clause in the complaint asking for
an amount exceeding $75,000, the defendant must prove by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional minimum. McCoy v. Erie Ins. Co., 147 F.
Supp. 2d 481, 489 (S.D. W. Va. 2001). The amount in controversy is what the plaintiffs claim to be
entitled to or demand. Scaralto v. Ferrell, No. 2:11-cv-00533, 2011 WL 5966349, at *5 (S.D. W.
Va. Nov. 29, 2011). In this case, there is no direct evidence of what the plaintiffs claim to be
entitled to. Instead, I must look to the totality of the circumstances and can consider, among other
things, “the type and extent of the plaintiff’s injuries and the possible damages recoverable
therefore, including punitive damages if appropriate.” McCoy, 147 F. Supp. 2d at 489. I use this
information to estimate the amount that a reasonable plaintiff would demand or claim. Scaralto,
2011 WL 5966349, at *6.
In addition to the amount-in-controversy requirement, “[a] case falls within the federal
district court’s ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is
complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.”
Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 388 (1998); see also 28 U.S.C. § 1332(a). However,
the judicially created fraudulent joinder doctrine provides an exception to the complete diversity
requirement, allowing a district court to assume jurisdiction even if there are nondiverse
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defendants at the time of removal. Marshall v. Manville Sales Corp., 6 F.3d 229, 232-33 (4th Cir.
1993). A finding of fraudulent joinder “permits a district court to disregard, for jurisdictional
purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss
the nondiverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461
(4th Cir. 1999).
III. Analysis
In my Memorandum Opinion and Order of April 26, 2012 (Case No. 2:12-cv-00415
[Docket 17]), I found that the defendants could not show by a preponderance of the evidence that
the amount in controversy exceeded $75,000 because compensatory damages were inadequate
and the plaintiffs did not seek punitive damages in their complaint. (Id. at 4-6).
Accounting for the estimated $10,000 in compensatory damages, the defendant has
offered no evidence that the plaintiffs’ request for noncompensatory damages
places over $65,000 in dispute. Moreover, there is no ad damnum clause in the
complaint, and the defendant has not submitted a settlement demand by the
plaintiffs. There is also no evidence in the record of verdicts in similar cases.
Accordingly, the defendant offers no more than speculation and conclusory
allegations that the amount in controversy exceeds $75,000.
(Id. at 5).
The defendants argue that they have since learned that the plaintiffs do indeed seek
punitive damages. As support, the defendants cite the following request for admission
propounded on each of the plaintiffs:
Request No. 1: Admit that Plaintiff is not seeking punitive damages in this lawsuit.
Response: Denied.
(Second Notice of Removal and Mot. for Sanctions [Docket 1], at 3-4). The defendants argue
that this response is an affirmative admission that plaintiffs are seeking punitive damages. The
defendants read too much into this response. In fact, when defense counsel asked for clarification
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of the plaintiffs’ response, plaintiffs’ counsel reaffirmed that “[a]t this early stage of discovery, it
is virtually impossible to make that determination. I am not in a position to [forego] punitive
damages at this point in time, but would be willing to revisit the issue as discovery progresses.”
(Mot. to Remand, Ex. 3 [Docket 5-3]).
I FIND that the defendant has failed to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000. When I first remanded this case, I did so for two
reasons: (1) the plaintiffs’ request for relief did not seek punitive damages, and (2) there was no
evidence in the record suggesting that damages would exceed $75,000. I explained that
the defendant has submitted evidence that the plaintiffs seek compensatory
damages for the bank account, which has nominal value, a 2005 Dodge truck,
which the defendant estimates is worth $10,000, and an ATV with a trailer and
collection of guns. The defendant has submitted no evidence as to the value of the
ATV and collection of guns. In addition to the compensatory damages, the
plaintiffs seek damages for pain, humiliation, embarrassment, degradation,
emotional distress, mental anguish, annoyance and inconvenience. Accounting for
the estimated $10,000 in compensatory damages, the defendant has offered no
evidence that the plaintiffs’ request for noncompensatory damages places over
$65,000 in dispute. Moreover, there is no ad damnum clause in the complaint, and
the defendant has not submitted a settlement demand by the plaintiffs. There is
also no evidence in the record of verdicts in similar cases. Accordingly, the
defendant offers no more than speculation and conclusory allegations that the
amount in controversy exceeds $75,000.
(Case No. 2:12-cv-00415, Mem. Op. & Order [Docket 17], at 5). Since then, the defendants’
only new evidence is the denial by plaintiffs’ counsel of the defendants’ interrogatory. That
denial does not prove, by a preponderance of the evidence, that the plaintiffs are seeking punitive
damages. Quite simply, the defendants continue to speculate and make conclusory allegations
that the amount in controversy exceeds $75,000.
Because I determine that the amount-in-controversy requirement is not satisfied, I do not
decide whether Mr. Mullins was fraudulently joined.

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IV. Attorney’s Fees and Costs
The plaintiffs argue that they should be awarded costs and attorney’s fees pursuant to 28
U.S.C. 1447(c), which states that “[a]n order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as a result of the removal.” The United
States Supreme Court has held that “the standard for awarding fees should turn on the
reasonableness of the removal.” Martin v. Franklin Capital 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. Conversely, when an
objectively reasonable basis exists, fees should be denied.” Id. Whether or not to award fees “is left
to the district court’s discretion[.]” Id. at 139.
I FIND that defendant Teressa Tabor’s Second Notice of Removal [Docket 1] was
objectively unreasonable. As I have explained, the only new evidence suggesting that the plaintiffs
seek punitive damages is their denial of a request for admission. However, that denial is not an
affirmative assertion that the plaintiffs are seeking punitive damages in their well-pleaded
complaint. The denial does not come close to proving by a preponderance of the evidence that
more than $75,000 is in controversy. Even assuming the plaintiffs were requesting punitive
damages in their complaint, this fact alone does not automatically place the amount in controversy
over $75,000. The defendants “cannot meet [their] burden by simply alleging the presence of a
sum in excess of the jurisdictional minimum. Instead, [the defendants] must supply evidence . . . .”
Scaralto v. Ferrell, 826 F. Supp. 2d 960, 963 (S.D. W. Va. 2011). The defendants have pointed to
no similar cases to support their allegations that punitive damages, if sought by the plaintiffs,
should be valued at an amount that would bring the total amount in controversy over $75,000.
Accordingly, defendant Teressa Tabor is ORDERED to pay the plaintiffs’ just costs and accurate
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expenses in defending removal pursuant to 28 U.S.C. § 1447(c). These expenses include attorney’s
fees in the matter. Plaintiffs’ counsel is DIRECTED to file within ten days, in this court, an
accounting for time spent, costs incurred, and the rate charged for fees incurred in this matter.
V. Conclusion
For the reasons discussed above, the plaintiffs’ Motion to Remand [Docket 5] is
GRANTED and Defendant Rick Mullins’ Motion for Costs and Attorney’s Fees [Docket 4] is
DENIED. This case is REMANDED to the Circuit Court of Kanawha County. Defendant Teressa
Tabor is ORDERED to pay the plaintiffs’ just costs and attorney’s fees incurred in defending
removal. The plaintiffs are DIRECTED to file within ten days, in this court, an accounting for
time spent, costs incurred, and the rate charged for fees incurred in this matter.
The Clerk is DIRECTED to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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October 15, 2013