Justice v. Branch Banking & Trust Company

Filing 43

MEMORANDUM OPINION AND ORDER denying plaintiff's 7 MOTION to Remand and for Fees and Costs. Signed by Judge Thomas E. Johnston on 1/4/2017. (cc: counsel of record; any unrepresented party) (taq)

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

LORI JUSTICE,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-03272

BRANCH BANKING & TRUST COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Remand and for Fees and Costs. (ECF
No. 7.) For the reasons discussed below, the Court DENIES the motion.
I. BACKGROUND
This case arises out of Defendant’s efforts to collect a debt from Plaintiff resulting from a
Retail Installment Sales Contract executed in August 2014 to purchase an automobile. (See ECF
No. 27 at 2, ¶¶ 7, 9.) Plaintiff is a resident of West Virginia, (id. at 1, ¶ 1), and Defendant “is a
corporation existing under the laws of North Carolina with its principal place of business located
in Winston-Salem, North Carolina.” (ECF No. 1 at 2, ¶ 6.)
The Amended Complaint alleges that “Defendant engaged in unconscionable and illegal
practices in attempts to collect a consumer claim and by repossessing property belonging to the
Plaintiff in violation of the law without authority or a current right of possession to do so.” (ECF
No. 27 at 2, ¶ 6.) As part of its debt-collection efforts, Defendant allegedly “engaged in repeated
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telephone calls to the Plaintiff, her family, [and] her friends . . . [that] were abusive, oppressive,
harassing, threatening, and rude.” (Id. at 3, ¶¶ 15–16.) Furthermore, Plaintiff claims that “[t]he
Defendant debt collector’s statements were misleading, threatening, abusive, oppressive, rude, and
harassing towards the Plaintiff in an attempt to collect the claim.” (Id. at 3, ¶ 22.) The Amended
Complaint also avers that Defendant unlawfully repossessed the vehicle that was the subject of the
August 2014 contract without providing “any Notice of Default or Right to Cure or court order
allowing Defendant to repossess the property . . . .” (See id. at 3, ¶¶ 23–26.)
On March 2, 2016, Plaintiff filed her Complaint in the Circuit Court of Logan County,
West Virginia. (ECF No. 1-1 at 7.) Defendant removed the case to this Court on April 6, 2016.
(ECF No. 1.) In the Notice of Removal, Defendant asserts that the sole basis for this Court’s
subject-matter jurisdiction over this case is diversity pursuant to 28 U.S.C. § 1332. (See id. at 1–
2.)
Plaintiff filed an Amended Complaint on November 3, 2016, (ECF No. 27), in accordance
with this Court’s order on November 1, 2016. (ECF No. 26.) The Amended Complaint includes
eleven counts: (1) violations of section 46A-2-125 of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”), (ECF No. 27 at 4–5, ¶¶ 31–35); (2) violations of section 46A-2-128
of the WVCCPA, (id. at 5, ¶¶ 36–39); (3) violations of section 46A-2-127 of the WVCCPA, (id.
at 5–6, ¶¶ 40–43); (4) violations of section 46A-2-106 of the WVCCPA, (id. at 6–7, ¶¶ 44–46);
(5) violations of section 46A-2-123 of the WVCCPA, (id. at 7, ¶¶ 47–50); (6) common law
conversion, (id. ¶¶ 51–52); (7) violations of section 46A-6-104 of West Virginia’s Unfair and
Deceptive Acts and Practices (“UDAP”) law, (id. at 7–8, ¶¶ 53–55); (8) tort of outrage, (id. at 8,
¶¶ 56–60); (9) common law negligence, (id. at 9, ¶¶ 61-68); (10) intentional infliction of emotional
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distress (“IIED”), (id. at 9–10, ¶¶ 69–75); and (11) common law invasion of privacy, (id. at 10–
11, ¶¶ 76–80). The Amended Complaint requests a broad array of relief, including the following:
(1) “[a]ctual damages for the past and future violations of the WVCCPA as authorized by West
Virginia Code 46A-5-101(1);” (2) “[s]tatutory damages in the maximum amount authorized by
West Virginia Code 46A-5-[ ]101(1);” (3) “[i]njunctive relief ordering Defendant to remedy any
negative reporting that may have occurred to credit bureaus and the like;” (4) “Plaintiff’s cost of
litigation;” (5) that Plaintiff’s “alleged debt be canceled;” (6) “[g]eneral damages and punitive
damages for Defendant’s past and future conduct alleged in Counts VI, VIII, IX, X, and XI;” and
(7) “other such relief as the Court shall deem proper and appropriate.” (Id. at 11, ¶ 81.)
Plaintiff filed the current motion to remand on May 6, 2016, in which she asserts that this
Court lacks subject-matter jurisdiction over the matter because the amount in controversy is below
the $75,000 requirement for diversity jurisdiction. (See ECF No. 8 at 2–3.) Defendant filed its
Response to Plaintiff’s Motion to Remand on May 20, 2016. (ECF No. 12.) Plaintiff did not file
a reply brief.
As such, this motion is briefed and ripe for the Court’s consideration.
II. LEGAL STANDARD
Article III of the United States Constitution provides, in pertinent part, that “[t]he judicial
Power shall extend . . . to Controversies . . . between Citizens of different States.” U.S. Const.
art. III, § 2. “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 interest and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a)(1).
Congress provided a right to remove a case from state to federal court under 28 U.S.C.
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§ 1441. This statute states, in relevant part:
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a state court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or 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). Because removal of civil cases from state to federal court infringes state
sovereignty, federal courts strictly construe the removal statute and resolve all doubts in favor of
remanding cases to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109
(1941); see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(“Because removal jurisdiction raises significant federalism concerns, we must strictly construe
removal jurisdiction.” (citation omitted)).
The party asserting federal jurisdiction bears the burden of proof. Landmark Corp. v.
Apogee Coal Co., 945 F. Supp. 932, 935 (S.D. W.Va. 1996). “A defendant that removes a case
from state court in which the damages sought are unspecified, asserting the existence of federal
diversity jurisdiction, must prove by a preponderance of the evidence that the value of the matter
in controversy exceeds the jurisdictional amount.” Id. (citing Gaus v. Miles, Inc., 980 F.2d 564,
567 (9th Cir. 1992)).

“This test is framed alternatively as a requirement that a defendant

demonstrate that it is more likely than not that the amount in controversy exceeds the jurisdictional
amount.” Id. (citing omitted). “To satisfy this burden, a defendant must offer more than a bare
allegation that the amount in controversy exceeds $75,000.” Judy v. JK Harris & Co., No. 2:10–
cv–01276, 2011 WL 4499316, at *3 (S.D. W.Va. Sept. 27, 2011) (citation omitted). The defendant
must supply evidence regarding the amount at issue. See McCoy v. Erie Ins. Co., 147 F. Supp. 2d
481, 489 (S.D. W.Va. 2001). “In so doing, he may rely upon the entirety of the facts and
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circumstances comprising the plaintiff’s damages claim.” Judy, 147 F. Supp. 2d at 489 (citation
omitted).
In evaluating a party’s claim to federal jurisdiction, a court should look toward the
circumstances as they existed at the time the notice of removal was filed. See Dennison v.
Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir. 2008) (“[F]ederal jurisdiction . . . is
fixed at the time the . . . notice of removal is filed.” (citing omitted)). In particular, where the
plaintiff’s monetary demand is not specified in the complaint, “[t]he value of the matter in
controversy . . . is determined by considering the judgment that would be entered if plaintiff
prevailed on the merits.” Landmark Corp., 945 F. Supp. at 936–37 (citation omitted). In
calculating the amount in controversy, a court may consider the entire record and make an
independent evaluation of whether the amount in controversy is satisfied. See Grubb v. Jos. A.
Bank Clothiers, Inc., No. 2:05-0056, 2005 WL 1378721, at *5 (S.D. W.Va. June 2, 2005) (citation
omitted).
III. DISCUSSION
The sole dispute between the parties as to this motion is whether the Court has diversity
jurisdiction over this matter. (See ECF No. 8 at 2; ECF No. 12 at 3–4.) Defendant argues—and
Plaintiff does not contest—that there is complete diversity between the parties. (See ECF No. 1
at 2, ¶¶ 5–6; ECF No. 12 at 3–4. See generally ECF No. 8.) Rather, the parties dispute whether
the amount in controversy exceeds $75,000. (ECF No. 8 at 2–3; ECF No. 12 at 4–6.)
Plaintiff does not specify an amount for the damages that she seeks in the Amended
Complaint. (See ECF No. 27 at 11, ¶ 81.) Defendant claims in its Notice of Removal that the
amount in controversy exceeds $75,000 for several reasons. First, Defendant cites Plaintiff’s
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WVCCPA claims arising out of repeated phone calls that were allegedly “abusive, oppressive,
harassing, threatening, and rude.” (See ECF No. 27 at 3, ¶¶ 15-16, 21–22; ECF No. 1 at 8.)
Plaintiff does not provide in her Amended Complaint or motion an exact or approximate number
of phone calls that Defendant made to her, her family, or her friends, (see ECF No. 27 at 3, ¶¶ 15,
21; ECF No. 8), but Defendant alleges that each phone call may result in damages up to a maximum
amount of $4,338. (See ECF No. 1 at 3, ¶ 8.) Additionally, Defendant notes Plaintiff’s other
statutory claims under the WVCCPA and UDAP for which she seeks damages. (See id.) Lastly,
Defendant lists Plaintiff’s remaining named grounds for relief as “conversion . . . tort of outrage,
[IIED], common law invasion of privacy, punitive damages and attorney fees.” (See id.) Due to
these various alleged grounds, Defendant claims that the amount in controversy “clearly exceeds
the $75,000.00 minimum amount to request removal under 28 U.S.C. § 1332.” (Id. ¶ 10.)
In Plaintiff’s Memo in Suport [sic] of Motion to Remand and for Fees and Costs, she claims
that Defendant “has not carried their burden to establish diversity jurisdiction.” (See ECF No. 8
at 2.) She alleges that Defendant’s notice of removal is defective because it “contains a mere
assertion that the amount in controversy requirement is met, but offers not [sic] analysis, no fact
in support, or no other assertion as to how.” (Id.) Plaintiff’s one-paragraph discussion in her
memorandum does not specify the damages she seeks and does not assert that she is pursuing less
than the jurisdictional threshold of $75,000. (See id. at 2–3.)
The Court finds that Defendant has met its burden of establishing that the amount sought
by Plaintiff is in excess of $75,000.

Several of Plaintiff’s causes of action fall under the

WVCCPA, which provides aggrieved debtors, like Plaintiff, an avenue through which to recover
“actual damages, attorney’s fees, and a statutory penalty of ‘not less than one hundred dollars and
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not more than one thousand dollars.’” See Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp.
2d 495, 500 (S.D. W.Va. 2014) (quoting W. Va. Code § 46A-5-101(1)). This Court has clarified
that “[a] separate penalty may be imposed for each WVCCPA violation.” See Bourne, 998 F.
Supp. 2d at 500 (citing Sturm v. Providian Nat’l Bank, 242 B.R. 599, 603 (S.D. W.Va. 1999)).
The $1,000 maximum penalty provided by the WVCCPA was created in 1974 and indexed to the
consumer price index. See W. Va. Code § 46A-5-106. In its 2015 session, the Legislature
amended section 106 to alter the time from which to begin the inflation adjustment. See W. Va.
Code § 46A-5-106 (2015). Thus, as of June 12, 2015, “the court may adjust the damages awarded
pursuant to section 101 of this article to account for inflation from 12:01 a.m. on September 1,
2015, to the time of the award of damages in an amount equal to the consumer price index.”1 Id.
(emphasis added), compare with § 46A-5-106 (1994) (directing courts “to account for inflation
from the time that the [WVCCPA] became operative, specifically 12:01 a.m. on the first day of
September, one thousand nine hundred seventy-four, to the time of the award of damages in an
amount equal to the consumer price index” (emphasis added)).
In considering whether the preponderance of the evidence standard has been met by
Defendant, the Court may consider “the type and extent of the plaintiff’s injuries and possible
damages recoverable therefore, including punitive damages if appropriate.” See Scaralto v.
Ferrel, 826 F. Supp. 2d 960, 964 (S.D. W.Va. 2011) (quoting McCoy, 174 F. Supp. 2d at 489).
This Court has determined that a multi-factor approach is appropriate in calculating the amount in

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The Court notes that Defendant alleged in its Notice of Removal that the WVCCPA sets an approximate maximum
damages award of $4,338 per call. (See ECF No. 1 at 3, ¶ 8.) However, this appears to be calculated prior to the
statute’s 2015 amendment, and while Defendant does not provide a source for its calculation, the Court cannot find
merit in that number. According to the Bureau of Labor Statistics website, $1,000 in 2015 has the same buying power
as $1,018.61 in 2016. See CPI Inflation Calculator, Bureau of Labor Statistics, U.S. Dep’t of Labor
<http://www.bls.gov/data/inflation_calculator.htm> (last visited Nov. 7, 2016). Thus, Plaintiff could recover
approximately $1,019 for every violation of the WVCCPA. See W. Va. Code §§ 46A-5-101(1), 46A-5-106.

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controversy. See id. Ultimately, “[i]f the court thinks that a reasonable plaintiff would claim
more than $75,000, then the defendant has met its burden of proof.” Id. at 968 (citation omitted).
The Supreme Court held in Dart Cherokee Basin Operating Co., LLC v. Owens that an
allegation in a notice of removal that the amount in controversy is met does not have to be
supported by evidentiary submissions. See 135 S. Ct. 547, 551 (2014). Because “a dispute about
a defendant’s jurisdictional allegations cannot arise until after the defendant files a notice of
removal,” id. at 554 (citing Pet’rs’ Br. 14) (emphasis in original), evidence establishing the amount
in controversy is required “only when the plaintiff contests, or the court questions, the defendant’s
allegation.” Id. “While it is undoubtedly best to include all relevant evidence in the petition for
removal and motion to remand, there is no good reason to keep a district court from eliciting or
reviewing evidence outside the removal petition.” Sierminski v. Transouth Fin. Corp., 216 F.3d
945, 949 (11th Cir. 2000). Where a determination cannot be made on the face of the complaint,
“the district court can then require parties to submit summary-judgment-type evidence, relevant to
the amount in controversy at the time of removal.” Allen v. R&H Oil & Gas Co., 63 F.3d 1326,
1336 (5th Cir. 1995). A settlement demand is “just one piece of evidence regarding the amount
in controversy.” See Scaralto, 826 F. Supp. 2d at 964 (citing Ferrell v. Jim Walter Homes, Inc.,
No. 2:07-cv-00300, 2007 WL 1704183, at *2 (S.D. W.Va. June 11, 2007) (remanding a case where
the plaintiffs offered to settle the matter for $20,000, and explaining that “although settlement
offers are not determinative of the amount in controversy, ‘they do count for something’”)).
“[T]he weight given to a settlement demand depends on the circumstances.” See id. at 964
(citations omitted).

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Defendant attaches to its response evidence of a settlement offer made by Plaintiff less than
a week before Defendant removed the case to this Court. See ECF No. 12-1 (indicating that the
offer was transmitted on March 29, 2016, eight days before Defendant’s removal on April 6, 2016,
see ECF No. 1). In that settlement letter, Plaintiff demanded a payment of $57,000 “to resolve all
seven counts outlined in the Complaint,”2 and that figure was “inclusive of attorney costs and fees
associated with filing of the complaint . . . .” See id. A statutory right to attorney fees, which
Plaintiff incorporated into her settlement offer, may be considered “as part of the amount in
controversy.” See McGowan v. Nissan N. Am., Inc., No. 2:12-cv-4927, 2012 WL 5878020, at *3
(S.D. W.Va. Nov. 20, 2012) (memorandum opinion). Given this Court’s discussion in Scaralto,
the demand is representative of an amount to which Plaintiff believes she is entitled and can be
included in the damages analysis. See 826 F. Supp. 2d at 966–68.
Furthermore, Plaintiff requests that this Court grant injunctive relief ordering Defendant to
cancel her alleged debt pursuant to West Virginia Code § 46A-5-105.3 Under this statute, any
remaining amount of the debt can be added to the calculation of damages.4 See Woodrum v.
The Court notes that Plaintiff’s original Complaint includes ten counts, (see ECF No. 1-1), and the Court cannot
determine whether the settlement offer was meant to resolve all the counts in the Complaint or only seven of the ten
counts.
3
Plaintiff’s debt stems from the Retail Installment Sale Contract that she entered into with Defendant in August 2014
to purchase a vehicle. (See ECF No. 27 at 2, ¶ 7–9.)
4
“In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured
by the value of the object of the litigation.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977).
In the Fourth Circuit, it is also “settled that the test for determining the amount in controversy in a diversity proceeding
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 Emps. Ins. Co. v. Lally, 327 F.2d 568, 569 (4th Cir. 1964)). This “pecuniary result”
includes the “monetary value” of a contract or agreement when the validity of that agreement is put at issue by a party.
See id. at 710–11.
In Woodrum v. Mapother & Mapother P.S.C., Inc., this Court addressed whether the amount in controversy
includes the value of the type of equitable relief at issue here. See No. 2:10–00478, 2010 WL 3943732, at *3 (S.D.
W.Va. Oct. 5, 2010) (memorandum opinion). In Woodrum—as in this case—the complaint sought the cancellation
of the plaintiff’s debt to the defendant pursuant to the willful-violation provision of West Virginia Code § 46A-5-105.
Id. The Court noted that, if the plaintiff “succeeded in proving the alleged willful violations, he may be entitled to
cancellation of the debt, even if that debt was legitimately incurred.” Id. Accordingly, the Court found that the debt
“should be considered in valuing the litigation.” Id.
2

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Mapother & Mapother P.S.C., Inc., No. 2:10-00478, 2010 WL 3943732, at *3 (S.D. W.Va. Oct.
5, 2010). Defendant attaches to its response to the motion a Sales Finance Charge-Off Request
Form, which lists the amount outstanding on the August 2014 loan as $20,096.61. (See ECF No.
12-1 at 2.) Simply adding the settlement demand of $57,000 to the remaining debt Plaintiff asks
this Court to cancel brings the amount to which she believes she is entitled to over $77,000.
Plaintiff did not deny in her motion or the memorandum in support of the motion that the
damages she seeks are at least $75,000. Plaintiff also did not argue the veracity of the figures
presented in the settlement letter and Sales Finance Charge-Off Request Form that Defendant
attached to its response to the motion. (See ECF No. 12-1.) Absent a limitation on Plaintiff’s
potential recovery, the amount in controversy is greater than the jurisdictional requirement.
Plaintiff’s motion also requests fees and costs incurred in filing the current motion. (See
ECF No. 8 at 1.) Pursuant to 28 U.S.C. § 1447(c), the Court may upon remanding the case order
Defendant to pay Plaintiff’s costs and expenses, including attorneys’ fees, incurred as a result of
the removal. However, given that the Court finds that it has jurisdiction over the matter and denies
the motion as far as it seeks remand to state court, the motion is also denied as it relates to a request
for fees and costs.
IV. CONCLUSION
For the reasons discussed, the Court finds that the amount in controversy exceeds $75,000.
As such, the Court finds that it has diversity jurisdiction over this matter. As such, the Court
DENIES the Motion to Remand and for Fees and Costs in its entirety. (ECF No. 7.)

The Court agrees with the Woodrum analysis. If the Court grants Plaintiff’s requested equitable relief,
Defendant will face the pecuniary loss of the value of the debt. As such, the Court includes the value of Plaintiff’s
debt to Defendant when determining the amount in controversy. See Dixon, 290 F.3d at 710 (stating that, in a
diversity proceeding, the amount in controversy is determined by the “pecuniary result” to a party).

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IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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January 4, 2017