Martin v. Moody et al
Filing
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MEMORANDUM OPINION & ORDER for the reasons stated more fully herein, denying the plaintiff's 5 MOTION to Remand. Signed by Judge Joseph R. Goodwin on 9/21/2016. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHRISTINA MARTIN,
Plaintiff,
v.
CIVIL ACTION NO. 2:16-cv-06788
MILTON MOODY, et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Pending before the court is the plaintiff’s Motion to Remand [ECF No. 5]. The
defendants filed their Response [ECF No. 6], and the plaintiff filed her Reply [ECF
No. 7]. For the reasons provided below, the Motion is DENIED.
I.
Background
This action was originally filed in the Circuit Court of Kanawha County, West
Virginia, on February 25, 2016. See Compl. [ECF No. 1-1]. The plaintiff’s claims arise
from an April 25, 2014, automobile collision on Interstate 64 in Charleston, West
Virginia. Id. ¶¶ 7–9. At the time of the collision, Moody was allegedly driving a
tractor-trailer owned by defendant Douglas & Sons, Inc. Id. ¶ 8. According to the
Complaint, Moody maneuvered the tractor-trailer into the plaintiff’s traffic lane,
striking the plaintiff’s vehicle and pushing her vehicle into a concrete barrier wall.
Id. ¶ 10. The plaintiff alleges that she suffered, and will continue to suffer, injuries
to her body. Id. ¶ 14. The plaintiff does not specify a monetary demand in her
Complaint. Instead, the plaintiff demands compensatory damages, punitive damages,
pre-judgment and post-judgment interest, and attorneys’ fees, costs, and expenses.
Id. ¶ 21.
On July 28, 2016, the defendants filed their Notice of Removal [ECF No. 1],
invoking the court’s diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332
and § 1446(b)(3). See Notice of Removal 7. On August 4, 2016, the plaintiff moved to
remand this action solely on the procedural ground that the defendants untimely filed
their Notice of Removal.1
II.
Jurisdiction
The defendants removed this action pursuant to 28 U.S.C. § 1446. Notice of
Removal 7. The defendants aver that the court has diversity subject-matter
jurisdiction over this action because the plaintiff is completely diverse in her
citizenship from both of the defendants and because the amount in controversy
exceeds $75,000. See id.; see also 28 U.S.C. § 1332.
The plaintiff’s Motion did not challenge the court’s subject-matter jurisdiction over this case, such as
by challenging the existence of diversity of citizenship or the satisfaction of the amount in controversy
threshold. The plaintiff raises for the first time in her Reply the issue of whether the defendants can
demonstrate that the requisite $75,000 amount in controversy threshold is met. I recognize that a
party may challenge the court’s jurisdiction at any time. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. §
1447(c). Yet, the required course for a party seeking a court order is to file a motion. See Fed. R. Civ.
P. 7(b) (“A request for a court order must be made by motion.”). “The ordinary rule in federal courts is
that an argument raised for the first time in a reply brief or memorandum will not be considered.”
Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d 731, 734 (D. Md. Sept. 11, 2006) (citing
United States v. Williams, 445 F.3d 724, 736 n.6 (4th Cir. 2006)). Accordingly, as the plaintiff has not
challenged the court’s jurisdiction in her Motion to Remand, I will consider only the plaintiff’s
arguments regarding the timeliness of the Notice of Removal. To the extent that the plaintiff may have
a more efficacious argument for remand based on the lack of subject-matter jurisdiction, I suggest that
the plaintiff file a proper motion.
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III.
Legal Standard
To remove an action from state court to federal court, a defendant must file a
notice of removal with the appropriate district court. See 28 U.S.C. § 1446(a).
Generally, a defendant has thirty days after receiving the initial pleading or
summons to file the notice of removal. See 28 U.S.C. § 1446(b). An exception to the
general rule is that “if the case stated by the initial pleading is not removable, a notice
of removal may be filed within 30 days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). “If the case stated by the initial pleading is not
removable solely because the amount in controversy does not exceed the amount
specified in section 1332(a), information relating to the amount in controversy in the
record of the State proceeding, or in responses to discovery, shall be treated as an
‘other paper’ under subsection (b)(3).” 28 U.S.C. § 1446(c)(3).
A defendant’s notice of removal is not required to meet a higher pleading
standard than the one imposed on a plaintiff in drafting an initial complaint.
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008) (“[J]ust
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’ . . . so too does
a removing party’s notice of removal sufficiently establish jurisdictional grounds for
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removal by making jurisdictional allegations in the same manner.” (citation
omitted)). “Of course, on a challenge of jurisdictional allegations, ‘[t]he party seeking
removal bears the burden of demonstrating that removal jurisdiction is proper.’” Id.
(quoting In re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir.
2006)). When jurisdiction is challenged, the removing party must prove jurisdiction
by a preponderance of the evidence. 28 U.S.C. § 1446(c)(2)(B); see also Mulcahey v.
Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The burden of
establishing federal jurisdiction is placed upon the party seeking removal.”).
IV.
Discussion
The plaintiff’s Motion does not challenge the court’s subject-matter jurisdiction
over this action—more specifically, the Motion does not challenge the jurisdictional
averments contained in the Notice of Removal. Instead, the plaintiff’s sole argument
is that the Notice of Removal was filed out-of-time. Interestingly, the plaintiff’s
Motion does not mention 28 U.S.C. § 1446(b)(3), which permits a defendant to remove
an action within thirty days after the defendant first ascertains that “the case is one
which is or has become removable.” The defendants cited to § 1446(b)(3) to justify the
timing of their Notice of Removal, yet the plaintiff completely ignores the provision
in her Motion.
The Fourth Circuit has held the following:
[O]nly where an initial pleading reveals a ground for removal will the
defendant be bound to file a notice of removal within 30 days. Where,
however, such details are obscured or omitted, or indeed misstated, that
circumstance makes the case “stated by the initial pleading” not
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removable, and the defendant will have 30 days from the revelation of
grounds for removal in an amended pleading, motion, order, or other
paper to file its notice of removal, provided that, in diversity cases, no
more than a year shall have passed from the date of the initial pleading.
Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997). “[T]he term ‘other
paper’ has been construed to include, for example, requests for admissions, deposition
testimony, settlement offers, answers to interrogatories, briefs, and product
identification documents given in discovery.” Tolley v. Monsanto Co., 591 F. Supp. 2d
837, 845 (S.D. W. Va. 2008) (citation omitted). “In determining whether the grounds
for removal were ascertainable from a motion, order or other paper, a court must not
inquire into the subjective knowledge of the defendant.” Id. The court should instead
“rely on the face of the initial pleading and on the documents exchanged in the case
by the parties to determine when the defendant had notice of the grounds for removal,
requiring that those grounds be apparent within the four corners of the initial
pleading or subsequent paper.” Lovern, 121 F.3d at 162.
The Complaint does not state any information regarding the amount of
damages the plaintiff incurred. A generic list provides the only description of the
plaintiff’s losses and injuries:
medical expenses;
pain and suffering;
physical limitations;
diminished capacity to enjoy life;
announce and inconvenience;
loss of household services;
permanent impairment;
mental anguish;
future pain and suffering;
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future medical services and consequent costs therefore;
other consequences and damages associated with her injuries as may be
specified as this action progresses; and
damage to [her] vehicle and other personal property.
Compl. ¶¶ 14, 21. The defendants argue that “the facts asserted in the Complaint
were not adequate for [them] to estimate the amount of damages sustained in the
case and therefore the amount in controversy.” Resp. 2. The defendants state that it
was not until the plaintiff responded to their discovery requests that they were able
to assess the removability of the case. See id. (“Plaintiff’s discovery responses
revealed information that allowed Douglas & Sons to determine that the amount in
controversy was greater than $75,000.”).
The plaintiff’s discovery responses revealed that she experienced neck, back,
and shoulder pain as a result of the collision. Resp. 3. Further, her responses state
that she suffers lumbar and cervical muscle strain. Additionally, she has incurred
nearly $25,000 in medical expenses to date. Id. Moreover, the plaintiff continues to
incur medical expenses, including expenses for “medical travel,” and she claims over
$5,000 in property damage to her vehicle. Id. Finally, the plaintiff reserves the right
to make a claim for loss of future earnings capacity. Id. The defendants argue that
this information, when combined with the plaintiff’s general statements of loss and
injury in her Complaint, reveals that the amount in controversy exceeds $75,000.
The plaintiff argues that the defendants’ insurance company offered over
$5,000 to settle the plaintiff’s claims regarding her vehicle, and that the insurance
company knew that the plaintiff’s medical expenses exceeded $21,000. Reply 1–2. The
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plaintiff attributes this information to the defendants.2 As stated above, I will not
inquire into the defendants’ subjective knowledge; I should, instead, examine the
initial pleading and the documents exchanged to determine when the defendants had
notice of the grounds for removal. See Tolley, 591 F. Supp. 2d at 845; Lovern, 121
F.3d at 162.
A review of the Complaint shows that it omitted certain factual allegations
regarding the extent of the plaintiff’s damages. The defendants have shown that they
were served with the plaintiff’s discovery responses on June 29, 2016, and the
defendants have alleged that the discovery responses permitted them to first
ascertain proper grounds for removal. The defendants filed their Notice of Removal
on July 28, 2016—within the thirty-day window allowed under the statute.
Accordingly, I FIND that the defendants timely removed this case pursuant to 28
U.S.C. § 1446(b)(3).
V.
Conclusion
For the reasons stated above, the plaintiff’s Motion to Remand [ECF No. 5] is
DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
September 21, 2016
“Presumably, when [the insurance company] hired defense counsel in this case[,] the entirety of their
file was transferred to counsel to assist in the litigation process.” Reply 2.
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