The Raw Bar LLC v. ADT LLC

Filing 40

MEMORANDUM OPINION AND ORDER The 30 Motion for Leave to File is granted, the supplemental response and accompanying exhibit are considered herein; the 8 Motion to Remand to Circuit Court is denied, as more fully set forth herein. Signed by Judge John T. Copenhaver, Jr. on 8/5/2019. (cc: counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
THE RAW BAR LLC, a West
Virginia limited liability
company,
Plaintiff,
v.

Civil Action no. 2:18-cv-0492

ADT LLC, a Delaware limited
liability company,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the motion to remand of the plaintiff,
filed April 10, 2018, and the uncontested Motion for Leave to
File a Supplemental Response to Motion to Remand, filed October
25, 2018 by the defendant.1

I. Background
This civil action, originally filed in the Circuit
Court of Kanawha County, West Virginia, concerns a fire that
occurred after operating hours at the plaintiff’s place of
business.

This happened after the defendant, ADT LLC (“ADT”)

It is ORDERED that the motion for leave of the defendant is hereby granted,
and the court will consider the supplemental response and accompanying
exhibit herein.
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had installed one of its security systems on the premises.
Compl. ¶ 5.

The plaintiff, The Raw Bar LLC (“The Raw Bar”),

claims the alarm system warned the defendant of the hazard, but
that the defendant “failed to properly respond and make
necessary and timely phone calls to the Plaintiff and/or
representative, the police or the fire department.”

Id. ¶ 6.

The Raw Bar brings three separate counts to recover for damages
related to the incident, including negligence, breach of
contract, and breach of warranty.

See id. ¶ 6.

As a result of defendant’s alleged failure to timely
respond, plaintiff alleges that its “business establishment
incurred severe damages, and the Plaintiff sustained lost
profits, personal property losses and other associated damages.”
Id. ¶ 7.

The associated damages sought include annoyance,

inconvenience, and aggravation.

Id. ¶ 21(c).

ADT removed based on diversity jurisdiction.
U.S.C. § 1332.

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In moving for remand, plaintiff argues that the

amount in controversy does not exceed the sum of $75,000 as
required by the diversity statute.

Specifically, The Raw Bar

notes that its complaint, signed by its attorney but not by its
representative, contains a stipulation that “the amount of
damages it sustained as a result of the Defendant’s wrongful
conduct does not exceed $75,000.”
2

The court notes that the

plaintiff’s request for attorney fees is couched in such a way
that it may be deemed to be a cost and expense in addition to
“damages”:
The Plaintiff requests it be awarded its costs and
expenses incurred in bringing this action, including
reasonable attorney fees, and such other relief as the
Court deems just.
Amended Compl. 5.
The Raw Bar further contends that because its
representative and attorney signed a stipulation after removal,
stating that the plaintiff suffered damages totaling less than
$75,000, the amount in controversy does not exceed the
jurisdictional threshold.

To the extent that plaintiff attempts

to rely upon the stipulation signed by its representative and
counsel, the court notes that it was not submitted to the court
until the case was removed, and in doing so, the plaintiff has
failed to comply with McCoy v. Erie Ins. Co., 147 F. Supp. 2d
481, 485-86 (S.D. W. Va. 2001) (holding that for a stipulation
to bear on a court’s finding with respect to the amount in
controversy requirement, it must have been signed by counsel and
his or her client and submitted prior to removal).
removal stipulation is thus ineffective.

The post-

Also ineffective is

the stipulation in the complaint, signed only by counsel.
The defendant filed a supplemental response to the
plaintiff’s motion to remand on October 25, 2018.
3

Therein, it

references the plaintiff’s responses to ADT’s Requests for
Admission.

In the first of those responses the plaintiff

states:
Either the Defendant accepts the Plaintiff’s
stipulation of not seeking damages in excess of
$75,000.00 and return the case to State Court or, if
the case remains in Federal Court, the amount of the
award will be as awarded by the jury.
See Response to First Req. for Adm. ¶ 1.

The defendant aptly

contends that this assertion supports its position that
diversity jurisdiction is proper.

II. Discussion
When a defendant removes, it bears the burden of
showing that it has properly invoked federal jurisdiction.

“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 . . . .”

Landmark v. Apogee Coal Co.,

945 F. Supp. 932, 935 (S.D. W. Va. 1996).

The test is framed as

a requirement that the defendant show it is “more likely than
not” that the jurisdictional amount is met.

Id. (citing

Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir.
1996).

Inasmuch as ADT asserts diversity jurisdiction as

grounds for removal and the damages sought in this case are not
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specified, the issue is whether ADT has shown by a preponderance
of the evidence that the amount in controversy exceeds $75,000.
In its complaint, The Raw Bar includes the statement
noted above, signed only by the plaintiff’s counsel, wherein it
states that the amount sought is $75,000 or less for “wrongful
conduct.”

The term “wrongful conduct” is at best ambiguous as

used here inasmuch as the plaintiff seeks attorney fees in
addition to “lost profits, personal property losses and other
associated damages.”

See Compl. ¶ 7.

Once the defendant

removed, the plaintiff’s subsequent stipulation similarly states
that the amount of “damages” it suffered as a result of the
defendant’s “wrongful conduct and negligent actions” does not
exceed the jurisdictional amount.
However, when one returns to ADT’s Requests for
Admission, there are two additional plaintiff admissions
(referenced in the defendant’s supplemental response), wherein
the plaintiff specifically (1) denies that it is not entitled to
recover more than $75,000 and (2) denies that the amount in
controversy does not exceed $75,000.
Requests for Admission ¶ 5-6.

Pl.’s Resp. to Def.’s

It can thus be readily inferred

from three of the plaintiff’s answers to ADT’s requests for
admission that the amount in controversy exceeds $75,000 and

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that The Raw Bar will seek a sum greater than $75,000 as
compensatory damages.
Similarly, and independently, the plaintiff’s request
in its complaint for damages of as much as $75,000 for wrongful
conduct and an award of its costs and expenses including
attorney fees supports the conclusion that the amount in
controversy exceeds $75,000.
III. Conclusion
The court finds by a preponderance of the evidence
that the amount in controversy is in excess of $75,000.

The

motion to remand is denied.
The Clerk is directed to forward a copy of this order
to all counsel of record and any unrepresented parties.
DATED:

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August 5, 2019