Evans v. TRG Customer Solutions, Inc. et al
Filing
20
MEMORANDUM OPINION & ORDER denying plaintiff's 6 MOTION to Remand to Circuit Court. Signed by Judge John T. Copenhaver, Jr. on 5/6/2014. (cc: attys; any unrepresented party) (tmr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KATHERINE EVANS,
Plaintiff,
v.
Civil Action No. 2:14-00663
TRG CUSTOMER SOLUTIONS, INC. and
JASON RITCHEY,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is the plaintiff’s motion to remand, filed
February 17, 2014.
The plaintiff contends that defendant Ritchey
is a citizen of West Virginia, so that the court is without
diversity jurisdiction.
I.
The plaintiff, Katherine Evans (“Evans”), brought a
complaint in the Circuit Court of Kanawha County on Oct 17, 2013.
Not. Removal.
Ex. 1 at 4.
The complaint alleges “state claims of
sexual discrimination and reprisal for having previously filed an
internal complaint of sexual discrimination and for participating
in the internal complaint process” against her former employer,
defendant TRG Customer Solutions, Inc. (“TRG”).
Mot. Remand 1.
Defendant Jason Ritchey (“Ritchey”), a manager at TRG when the
plaintiff worked there, is alleged to have engaged in harassment
and discriminatory employment decisions, including taking part in
terminating the defendant in an act of reprisal. 1
VI, VII, XVII.
Compl. ¶¶ III,
Evans requests an injunction restoring her
position, front pay, back pay, reimbursement for Social Security
benefits, and other damages.
The complaint alleges that Ritchie
is a citizen of West Virginia, and that Evans is a citizen of West
Virginia. Id. ¶ III.
After being served on December 9, 2013, TRG timely
removed the case.
The docket reflects that Ritchey has not yet
been served, either before or after removal.
In support of
invoking diversity jurisdiction, TRG claims that Ritchey is a
citizen of Hawaii, and that TRG is a Delaware corporation with a
principal place of business of Washington, D.C, and therefore not
a West Virginia citizen.
Not. Removal ¶ 4.
The plaintiff’s motion for remand simply asserts that
TRG has provided no evidence to support its assertion that Ritchey
is a Hawaii citizen.
In response TRG argues that Ritchey is a
Hawaii citizen and attaches to its motion Ritchey’s affidavit
saying as much, a copy of a Ritchey’s Hawaiian driver’s license,
and copies of Ritchey’s W-2 forms.
1
TRG also argues that Ritchey
The plaintiff has also filed, on April 14, 2014, a motion
seeking leave to amend her complaint to file more claims against
defendant TRG, particularly claims for negligent supervision and
negligent retention of Ritchey because TRG still maintained
Ritchey’s employment while knowing that Ritchey engaged in illegal
conduct. That motion remains pending.
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should be dismissed from this case because he has not been served,
in violation of Fed. R. Civ. P. 4(m), but inasmuch as TRG does not
state why that would mean that the motion to remand should be
denied, the argument is not further addressed.
Although not
challenged by the plaintiff, TRG also asserts that the amount in
controversy requirement is met.
The plaintiff has not replied to
TRG’s response.
II.
Title 28 U.S.C. § 1441(a) governs federal removal
jurisdiction.
The statute provides pertinently as follows:
[A]ny civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the . . . defendants . .
. to the district court of the United States for the
district and division embracing the place where such
action is pending. . . .
28 U.S.C. § 1441(a) (2012).
One basis for federal jurisdiction is
the diversity statute, 28 U.S.C. § 1332.
For removed actions,
§ 1441(a) requires that the court look at the dispute between the
parties at the time of removal to determine whether the court has
diversity jurisdiction.
See 28 U.S.C. § 1441(a) (2012); Moffit v.
Residential Funding Co., LLC, 604 F.3d 156, 159 (4th Cir. 2010).
To exercise diversity jurisdiction under § 1332, no
plaintiff may be a citizen of the same state as any defendant.
See, e.g., Rosmer v. Pfizer, 263 F.3d 110, 123 (4th Cir. 2001).
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Also, the amount in controversy must exceed $75,000.
§ 1332 (2012).
28 U.S.C.
An action may not be removed to federal court if
any defendant is originally sued in the courts of the state in
which that defendant maintains citizenship.
28 U.S.C. § 1441(b)
(2012).
The plaintiff’s main argument for remand is that removal
is not warranted because TRG “has supplied no evidence to support
diversity of citizenship.”
Mot. ¶ 8.
However, the removing party
does not need to supply evidence in the notice of removal.
It
merely needs to allege jurisdictional grounds for removal.
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th
Cir. 2008).
It is
inappropriate for the district court to . . . require[] a
removing party’s notice of removal to meet a higher pleading
standard than the one imposed on a plaintiff drafting an
initial complaint. Therefore, just as a plaintiff's
complaint sufficiently establishes diversity jurisdiction if
it alleges that the parties are of diverse citizenship and
that “[t]he matter in controversy exceeds, exclusive of
interest and costs, the sum specified by 28 U.S.C. § 1332,”
see Fed.R.Civ.P. 84; Fed.R.Civ.P. app. Form 2(a), so too does
a removing party's notice of removal sufficiently establish
jurisdictional grounds for removal by making jurisdictional
allegations in the same manner. Of course, on a challenge of
jurisdictional allegations, “[t]he party seeking removal
bears the burden of demonstrating that removal jurisdiction
is proper.” Blackwater, 460 F.3d at 583. But this burden is
no greater than is required to establish federal jurisdiction
as alleged in a complaint.
Id.
Accordingly, the plaintiff’s argument fails.
4
Notably, the plaintiff’s motion does not actually
challenge Ritchey’s citizenship as a factual matter.
Nevertheless, because the defendants have presented materials in
rebuttal of such an argument, the court will consider the issue.
When jurisdiction is challenged, the removing party bears the
burden of showing jurisdiction exists.
Id.; Strawn v. AT&T
Mobility, LLC, 530 F.3d 293, 296-97 (4th Cir. 2008).
“Where
federal jurisdiction hinges on the status of the parties, the
court may ascertain the existence of that status independently of
the complaint.”
Table Talk Pies of Westchester v. Strauss, 237 F.
Supp. 514, 518 (S.D.N.Y. 1964).
In its response to the motion to remand, TRG has
presented a signed declaration from Ritchey that he moved to
Hawaii before this action was filed in state court in October
2013, with the intent of remaining there indefinitely.
3.
Resp. Ex.
In that declaration, Ritchey also attests to the validity of
an attached copy of a Hawaiian driver’s license that was issued to
him on September 19, 2013, and the veracity of an attached copy of
a 2013 W-2 showing an address in Hawaii and state taxes withheld
in West Virginia and Hawaii.
The plaintiff has provided no
materials concerning Ritchey’s citizenship aside from her
complaint.
5
Citizenship for purposes of diversity jurisdiction is
determined by a defendant’s domicile.
“[D]omicile is established
by physical presence in a place in connection with a certain state
of mind concerning one’s intent to remain there.”
Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
Based on the affidavit, driver’s license, and W-2, the court finds
that Ritchey began to be a citizen of Hawaii before this action
was filed in state court, and remains a citizen of Hawaii.
See,
e.g., Ward v. Walker, 725 F. Supp. 2d 506, 510 (D. Md. 2010)
(driver’s license and tax filings bear on question of
citizenship).
For complete diversity to exist, defendant TRG must also
be a citizen of a state other than West Virginia.
A corporation
is a citizen of both the state where it is incorporated and the
state where it has its principal place of business.
1332(c)(1) (2012).
28 U.S.C. §
The notice of removal asserts that TRG is
incorporated in Delaware and has a principal place of business in
Washington, D.C.
these assertions.
Not. Rem. ¶ 4.
The plaintiff does not dispute
TRG also attached to its response to the
plaintiff’s motion a West Virginia Secretary of State listing
showing that TRG is incorporated in Delaware and has a principal
office address in Washington, D.C.
Resp. Ex. 1.
TRG is not a citizen of West Virginia.
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The Court finds
The amount in controversy must also be over $75,000 for
the court to invoke diversity jurisdiction.
(2012).
28 U.S.C. § 1332(a)
The plaintiff does not challenge the amount in
controversy.
TRG asserts it is met because the plaintiff seeks
injunctive relief, front pay and back pay, reimbursement for
Social Security benefits, damages for mental and physical
distress, among other damages.
TRG attached to its response the
offer letter for the Evans’ job describing the salary for her
position as $40,000 per year.
Resp. Ex. 5.
The plaintiff has not
been working at TRG since October 2011, and given her requests for
front pay and back pay, as well as other alleged damages, the
court is satisfied that the amount in controversy exceeds $75,000.
Accordingly, the court finds that the parties are
totally diverse and, because the amount in controversy is met,
jurisdiction in diversity here exists.
For the reasons stated, it is ORDERED that the
plaintiff’s motion for remand, filed February 17, 2014, be, and it
hereby is, denied. 2
2
TRG also argues the motion to remand should be denied because it
is unaccompanied by a memorandum as required by Local Rule
7.1(a)(2). Inasmuch as the plaintiff’s professed grounds for
remand fail on substantive grounds, there is no need to address
this procedural point.
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The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
ENTER: May 6, 2014
John T. Copenhaver, Jr.
United States District Judge
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