Turner v. Toys "R" Us, Inc. et al

Filing 59

MEMORANDUM OPINION AND ORDER denying Plaintiff Alison Turner's 50 MOTION to Remand to Circuit Court of Cabell County. Signed by Judge Robert C. Chambers on 10/9/2013. (cc: attys; any unrepresented parties) (mkw)

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

ALISON TURNER,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-7245
(Consolidated with 3:12-7246 and 3:12-7248)

TOYS “R” US, INC., a Delaware Corporation
doing business in Cabell County, West Virginia;
MOHAMMAD ROMAN, individually and in his
capacity as general store manager of TOYS “R “
US, INC.; and JOHN DOE, unknown person or persons,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is Plaintiff Alison Turner’s Motion for Remand (ECF No. 50). For the reasons
stated below, this Motion is DENIED.
I. Statement of Facts
On September 24, 2012, Plaintiff commenced this action in the Circuit Court of Cabell
County, West Virginia, seeking compensatory damages, punitive damages, and pre-judgment
interest from Defendants Mohammad Roman, Toys “R” Us, and John Doe. On November 1, 2012,
Defendants removed this case to this Court under 28 U.S.C. § 1441 based on 28 U.S.C. § 1332
diversity jurisdiction. Plaintiff filed an Amended Complaint with this Court on January 1, 2013,
stating in the ad damnum section, “Plaintiff [demands] judgment . . . against Defendants for
compensatory damages in an amount excess of this Court’s minimum jurisdictional limit. Plaintiff

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further demands . . . punitive damages against . . . Defendants . . . in an appropriate sum, which will
properly punish Defendants for their conduct and deter other like-minded parties.” Am. Compl. at
7, ECF No. 13. On April 22, 2013, this case was consolidated for pretrial matters with two other
cases against Defendants. The parties have undertaken extensive discovery in this Court.
On September 9, 2013, Plaintiff filed the Motion for Remand that is the subject of this
Order, stating that this Court does not have jurisdiction over this case, given that “[t]he matter in
controversy . . . equals a sum or value less than the minimum jurisdictional amount of $75,000.00.”
Mem. in Supp. of Remand, ECF No. 51. In support of this contention, Plaintiff attaches a “binding
stipulation” which states, “[Plaintiff] does hereby stipulate that she does not seek nor will she
accept a sum of money from . . . Defendants . . . in excess of $75,000.00.” Binding Stipulation of
Alison Turner, ECF. No. 50-1. This stipulation is signed by Plaintiff and counsel for Plaintiff, and
notarized. Plaintiff also attaches a settlement demand letter addressed to Defendants’ counsel. The
letter states, “[Plaintiff] will accept the sum of $50,000.00 in exchange for a full release of all her
claims of any nature including attorney fees, punitive damages, and compensatory damages
against all parties in interest.” Letter from Michael A. Woelfel, Woelfel & Woelfel, LLP, to A.
Patricia Diulus-Myers & Bethany Swanton Wagner, Jackson Lewis (Sept. 4, 2013), ECF No. 50-2.
Defendants timely filed their Response. While acknowledging their burden to prove that
the value of the matter exceeds $75,000 by a preponderance of the evidence, Defendants argue that
the large number of claims for which damages are requested in the Complaint—along with the
legal and equitable relief, attorney’s fees, and punitive damages which Plaintiff may be entitled to
under the West Virginia Human Rights Act—could exceed the minimum jurisdictional amount.
Defs.’ Resp. in Opp’n to Pl.’s Mot. for Remand at 2-3, ECF No. 54. Defendants argue that the
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stipulation is untimely filed to affect jurisdiction, that Plaintiff on two occasions during discovery
refused to state the damages she is seeking with particularity, and that, if remand is granted,
prejudice will result for Defendants, given the consolidation of this case with two others for all
pretrial matters, the extensive and continuing discovery in this case, and upcoming plans for
mediation. Id. at 3-5. Defendants argue that Plaintiff is only seeking remand so long after removal
because, after extensive discovery, Plaintiff now believes her case to be weak and worth less than
she thought originally. Id. at 3-4. Defendants request that this Court deny the Motion to Remand
and assess all costs and fees related to their Response against Plaintiff.
Plaintiff’s timely Reply states that Defendants failed to meet their burden of proving, by a
preponderance of the evidence, that the value of the matter exceeds $75,000. This Motion is now
ripe for resolution.
II. Standard
Section 1332 states that “district courts . . . 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). The parties do
not dispute diversity; they only dispute whether the amount in controversy exceeds $75,000.
The amount in controversy is determined at the time of removal, not as increased or
decreased by later events. See Shumate v. DynCorp Int'l LLC, No. 5:11-CV-00980, 2012 WL
830241, at *5 (S.D. W. Va. Mar. 9, 2012). “[I]f there is no ad damnum clause [in the complaint]
with an amount over $75,000, the defendant must prove by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional minimum.” Scaralto v. Ferrell, 826 F. Supp.
2d 960, 962 (S.D. W. Va. 2011). “To satisfy this burden, [the] defendant must offer more than a
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bare allegation that the amount in controversy exceeds $75,000.” A2C2 P'ship LLC v.
Constellation Software, Inc., No. 2:13-CV-01449, 2013 WL 5204756 (S.D. W. Va. Sept. 13,
2013). To determine the amount in controversy, a court may consider:
the type and extent of the plaintiff's injuries and the possible damages recoverable
therefore, including punitive damages if appropriate. The possible damages
recoverable may be shown by the amounts awarded in other similar cases. 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.
McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481, 489 (S.D. W. Va. 2001).
Additionally, in this district, a unilateral stipulation must be “a formal, truly binding,
pre-removal stipulation signed by counsel and his client explicitly limiting recovery” in order to
limit the amount in controversy in the case. Id. at 485 (emphasis added). Further, “the stipulation
should be filed contemporaneously with the complaint, which also should contain the sum-certain
prayer for relief.” Id. at 486.
III. Analysis
The Court first notes that, in the eleven months since the removal of this case to this Court,
Plaintiff has never before filed a motion to remand or in any way challenged the amount in
controversy alleged in Defendants’ Notice of Removal, despite the fact that Defendants devote
eight of the thirty numbered paragraphs in the Notice to this precise issue. Defs.’ Notice of
Removal ¶¶ 3, 20-26, ECF No. 1.
Second, given that Plaintiff’s stipulation and settlement demand were both first filed
simultaneously with Plaintiff’s Motion to Remand, neither holds weight in determining the
amount in controversy in this case.
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Third, to the extent that the ad damnum section of the Plaintiff’s Amended Complaint
states an amount in controversy, it supports Defendants’ burden since it states that “Plaintiff
[demands] judgment . . . against Defendants for compensatory damages in an amount excess of this
Court’s minimum jurisdictional limit.” Am. Compl. at 7 (emphasis added).
Finally, in her Amended Complaint, Plaintiff alleges sexual harassment, sexual
exploitation, a hostile work environment, negligent retention , negligent failure to train, negligent
failure to supervise, negligent failure to intervene, intentional infliction of emotional distress,
retaliation, invasion of privacy, willful and wanton conduct, sexual battery, civil assault, civil
battery, negligent infliction of emotional distress, violation of the West Virginia Human Rights
Act, and violation of the public policy of the State of West Virginia. Am. Compl. ¶¶ 3, 5-16, 18-19,
21, 23, 25, 27. Plaintiff requests compensatory damages for anxiety, humiliation, annoyance and
inconvenience, emotional distress, pain and suffering, mental anguish, loss of ability to enjoy life,
and present and future medical expenses. Id. at 7 & ¶ 29. She also requests punitive damages
against all Defendants and “such other . . . relief as this . . . Court may deem proper.”1 Id. at 7.
Plaintiff specifically alleges a course of atrocious conduct by Defendant Roman, including
“frequently press[ing] his pelvic area against Plaintiff’s lower body . . . to satisfy his . . . lascivious
desires,” “recount[ing] his sexual experiences,” “describ[ing] the size of his erect penis in the
context of imagined sexual intercourse with her,” and “utiliz[ing] his position of authority . . . [to]
attempt[] to coerce sexual favors from her.” Am. Compl. ¶ 10. She also alleges that Defendants
Toys “R” Us and Doe “knew or should have known of [past] acts of . . . sexual exploitation of
women by [Defendant] Roman,” “were made aware” of Defendant Roman’s sexual exploitation of
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Under the West Virginia Human Rights Act alone, a successful complainant may be entitled to legal
relief, equitable relief, punitive damages, and attorney’s fees. W. Va. Code § 5-11-13(c); CSX Transp., Inc.
v. Smith, 729 S.E.2d 151, 172 (W. Va. 2012).

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Plaintiff and “failed to intervene,” and “retaliat[ed] [against Plaintiff] . . . for reporting [Defendant
Roman’s] misconduct.” Id. ¶¶ 6, 9, 15. Taking into account the large number of claims, the alleged
extensive course of abusive conduct, and the demand for punitive damages against all Defendants,
the Court finds that Defendants have proven by a preponderance of the evidence that the amount in
controversy in this case exceeds the jurisdictional minimum of $75,000. Thus, Plaintiff’s Motion
for Remand is denied.
IV. Conclusion
Plaintiff Turner’s Motion for Remand (ECF No. 50) is DENIED.
Defendants request that this Court assess all costs and fees related to their Response against
Plaintiff. Though Plaintiff’s Motion to Remand was filed much later than prudence would
recommend, the Motion alleged lack of subject matter jurisdiction, which may be raised “at any
time before final judgment.” 28 U.S.C. § 1447(c). While Defendants have succeeded in carrying
their burden regarding the amount in controversy in this case, they have not shown Plaintiff’s
conduct to be in “bad faith” under Federal Rule of Civil Procedure 11.2 Roadway Exp., Inc. v.
Piper, 447 U.S. 752, 766-67 (1980). Plaintiff has merely held Defendants to their burden. Thus, to
the extent that the Court has discretion to award attorney’s fees or costs when a motion to remand
is denied, it will not do so here.

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The Court would only have discretion to order Defendants to pay costs and fees incurred as a result of
removal in an order remanding a case under 28 U.S.C. § 1447(c).

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

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October 9, 2013