Ward v. Doe et al

Filing 12

MEMORANDUM OPINION AND ORDER denying Plaintiff's request for attorney's fees and costs; granting Plaintiff's 7 PETITION to Remand and REMANDS this action to the Circuit Court of Wayne County, West Virginia. Signed by Judge Robert C. Chambers on 1/24/2012. (cc: attys; any unrepresented parties, Clerk, Circuit Court of Wayne County) (mkw)

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

MICHAEL WARD,
Plaintiff,
v.

CIVIL ACTION NO. 3:11-0924

JOHN/JANE DOE unknown driver,
individually and LINDE LLC, a
foreign corporation,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Michael Ward’s Petition for Remand to send this
action back to the Circuit Court of Wayne County, West Virginia, and for an award of attorney’s
fees and costs. Plaintiff asserts that the amount in controversy does not exceed $75,000 as provided
under 28 U.S.C. § 1332(a). Defendant Linde LLC contends that the amount in controversy exceeds
the jurisdictional threshold. After reviewing the Complaint and the legal memoranda, the Court
concludes Defendant has failed to meet its burden to show that the requisite amount is in controversy
and, therefore, GRANTS Plaintiff’s motion to remand. [ECF No. 7].
I.
DISCUSSION
Defendant removed this case to federal court pursuant to 28 U.S.C. § 1441, and
based jurisdiction upon 28 U.S.C. § 1332, which permits cases to be brought in federal court if the
case involves citizens of different states and the amount in controversy exceeds $75,000, exclusive

of interest and costs. The sole issue raised by Plaintiff is whether the $75,000 amount in controversy
is satisfied.

This case arises from a vehicle-pedestrian accident in which Plaintiff alleges he was
hit by a tractor trailer truck operated by an unknown employee of Defendant. Plaintiff states he was
knocked to the ground, suffering injuries, but the driver of the truck did not stop and left the scene
of the accident. In his Complaint, Plaintiff requests damages for personal injuries; medical care;
pain and suffering; diminished capacity to enjoy life; annoyance, inconvenience, humiliation, and
embarrassment; household services; and lost past and future wages and earning capacity. Plaintiff
makes no request for punitive damages, and he specifically states his “claim is less then [sic]
$74,000.00 Dollars.” Compl., at 3. Although Defendant argues these damages exceed the $75,000
benchmark, the Court finds Defendant has failed to meet its burden of proof.

In a removal action, the defendant bears the burden of proving by a preponderance
of the evidence that the claims exceed the jurisdictional amount. McCoy v. Erie Ins. Co., 147
F. Supp.2d 481, 489 (S.D. W. Va. 2001); Mullins v. Harry’s Mobile Homes, Inc., 861 F. Supp. 22,
23-24 (S.D. W. Va. 1994). In order to satisfy this burden, “a defendant must offer more than a bare
allegation that the amount in controversy exceeds $75,000. Rather, the defendant seeking removal
must supply evidence to support his claim regarding the amount at issue in the case.” Sayre v. Potts,
32 F. Supp. 2d 881, 886 (S.D. W. Va. 1999) (citations omitted).

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In West Virginia, “an ad damnum clause that seeks an amount below the
jurisdictional threshold is not, in and of itself, enough here to deny federal jurisdiction.” Strawn v.
AT&T Mobility, Inc., 513 F. Supp.2d 599, 603 (S.D. W. Va. 2007)1 (citing McCoy v. Erie Ins. Co.,
147 F. Supp.2d at 484-86).2 Instead, in adjudicating the amount in controversy, “the court may look
to the entire record before it and make an independent evaluation as to whether or not the
jurisdictional amount is in issue.” White v. J.C. Penney Life Ins. Co., 861 F. Supp. 25, 27 (S.D.
W. Va. 1994) (citing 14A Wright & Miller, Federal Practice and Procedure, § 3725 (1985)). A
court may look to:
the type and extent of the plaintiff's injuries and the
possible damages recoverable therefore, including
punitive damages if appropriate. . . . Another factor
for the court to consider would be the expenses or
losses incurred by the plaintiff up to the date the
notice of removal was filed. The defendant may also
present evidence of any settlement demands made by
the plaintiff prior to removal although the weight to
be given such demands is a matter of dispute among
courts.

1

Rev’d on other grounds, 503 F.3d 293 (4th Cir. 2008).

2

The Court in Strawn recognized that the United States Supreme Court previously stated in
dicta that a plaintiff may “‘resort to the expedient of suing for less than the jurisdictional amount,
and though he would be justly entitled to more, the defendant cannot remove.’” Id. at 602 (quoting
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294 (1938)). Many courts have
found this dicta establishes “‘a bright-line rule compelling remand where a specific sum less than
the jurisdictional amount is stated.’” Id. at 602-03 (quoting McCoy, 147 F. Supp.2d at 484).
However, the statement in Red Cab was based upon the assumption that a plaintiff was bound by
the amount asserted in the ad damnum clause. Id. at 603 (citation and footnote omitted). This
assumption is not true under West Virginia law. Id.
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McCoy, 147 F. Supp.2d at 489 (internal quotation marks and citations omitted). In making this
determination, the court “is not required to leave its common sense behind.” Mullins v. Harry’s
Mobile Homes, Inc., 861 F. Supp. at 24.

In this case, Plaintiff asserts his medical bills are only $4,934.75,3 and he made a
settlement offer of $28,934.75. He also specifically states in the Complaint that the damages will
not exceed $74,000.00. While neither his offer of settlement nor the ad damnum clause are binding,
both of these figures, and the amount of special damages Plaintiff is claiming, are significantly lower
than the jurisdictional amount and support Plaintiff’s argument for remand. In addition, Defendant
has not offered any evidence sufficient to support its claim that the amount in controversy exceeds
$75,000. Moreover, although Plaintiff may request punitive damages at some point in the future,
he has not made a claim for such damages at this point in time and, even if he does, Defendant still
has failed to show the amount in controversy would be sufficient to establish federal jurisdiction.
Therefore, the Court agrees with Plaintiff that the case should be remanded.

Turning next to the issue of whether Plaintiff should be awarded fees and costs
associated with remand, the Court recognizes it has discretion to order Defendant to pay such
amounts in connection with the removal and remand. 28 U.S.C. § 1447 (providing, in part, “[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”). “[A]n award of fees under § 1447(c) is left to

3

In his settlement demand letter, Plaintiff’s medical treatment totals 4,934.75. Plaintiff states
in his Petition for Remand that his medical treatment totaled $5,934.75. The Court believes it is
likely that the amount in the Petition is a typographical error but, in any event, the $1,000 difference
does not change this Court’s decision.
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the district court's discretion, with no heavy congressional thumb on either side of the scales[.]”
Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). “The appropriate test for awarding fees
under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while not undermining Congress' basic decision
to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied.”
Id. at 140. In the end, reasonableness is the standard by which the request must be evaluated. Id.
“Absent unusual circumstances, courts may award attorneys' 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. (citations omitted). Although the
Court in this case finds Defendant has failed to prove subject matter jurisdiction, the Court does not
find that Defendant’s decision to remove this case from state court was objectively unreasonable or
contrary to well-settled law. Consequently, the Court DENIES Plaintiff's request for fees and costs.
II.
CONCLUSION
Thus, in sum, the Court finds Defendant has failed to show by a preponderance of
the evidence an amount in controversy that exceeds $75,000.00, but DENIES Plaintiff’s request for
attorney’s fees and costs. Accordingly, the Court GRANTS Plaintiff’s motion and REMANDS this
action the Circuit Court of Wayne County, West Virginia.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and
any unrepresented parties.
ENTER:

January 24, 2012

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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