Chandler v. Ultimate Health Services, Inc.

Filing 24

ORDER denying 5 MOTION to Remand to Circuit Court; denying as moot 7 Motion to Dismiss. Signed by Judge Robert C. Chambers on 2/9/2015. (cc: attys; any unrepresented party) (skm)

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

MELISSA CHANDLER,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-27340

ULTIMATE HEALTH SERVICES, INC.,

Defendant.
ORDER
Pending before the Court is Plaintiff Melissa Chandler’s Motion to Remand (ECF
No. 5) and Defendant Ultimate Health Services, Inc.’s Motion to Dismiss. ECF No. 7. For the
following reasons, the Court DENIES Plaintiff’s Motion to Remand and DENIES AS MOOT
Defendant’s Motion to Dismiss.
I.
FACTS
On September 24, 2014, Plaintiff filed a Complaint in the Circuit Court of Cabell
County. In her Complaint, Plaintiff alleges that she began working for Defendant on June 13,
2011, as a Certified Nuclear Medicine Technologist. During her tenure, Plaintiff claims that she
witnessed illegal and highly dangerous activities of other employees with respect to patient care.
Plaintiff states she reported these activities to her supervisor. In addition, Plaintiff asserts her
supervisor instructed her to violate medication protocols.

On September 25, 2013, Plaintiff was fired from her job. Plaintiff alleges her
termination was due, at least in part, to her reporting of these activities. As a result, Plaintiff
asserted three causes of actions in her original Complaint: Count One is for the “Tort of
Outrage,” Count Two is for “Wrongful Termination in Violation of Public Policy,” and Count
Three is for “Retaliatory Discharge.” Although Plaintiff did not set forth an ad damnum clause
requesting a specific dollar amount in damages, she sought damages for both past and future lost
wages and benefits, and damages for “humiliation, annoyance, inconvenience, embarrassment,
fear, emotional and mental distress, financial hardship and loss of personal dignity.” Compl. at ¶
29, in part. In addition, Plaintiff requested punitive damages for Defendant’s outrageous conduct
and “reckless indifference as to . . . [her] civil rights and West Virginia public policy[.]” Id. at ¶31.

On October 28, 2014, Defendant removed the action to this Court based upon
diversity. 28 U.S.C. §§ 1332, 1441, and 1446. Plaintiff then moved to remand the action to state
court, and Defendant moved to dismiss. On November 17, 2014, Plaintiff filed an Amended
Complaint. In her Amended Complaint, Plaintiff recharacterizes her claims in two counts.
Count One is for “Harless Retaliatory Discharge,” 1 and Count Two is for “Intentional Infliction of
Emotional Distress.” In her Prayer for Relief, Plaintiff seeks damages “for all monetary and/or
economic damages including but not limited to, medical bills, and the loss of past and future
income, wages, compensation, seniority and other benefits of employment.” Am. Compl. ¶A. In
addition, she seeks punitive damages and damages for, inter alia, her emotional distress, “harm to
her professional and personal reputation and loss of career fulfillment.” Id. at ¶¶B-E.

1

Harless v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978).
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II.
DISCUSSION
This Court has original jurisdiction over all actions between citizens of different
states when the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. In the Motion to
Remand, Plaintiff does not dispute that diversity of citizenship exists. However, she claims that
Defendant has failed to demonstrate that the amount in controversy exceeds $75,000.

In considering whether the jurisdictional minimum has been met, the removing
party has the burden to establish federal jurisdiction. Mulcahey v. Columbia Organic Chem. Co.,
29 F.3d 148, 151 (4th Cir. 1994) (citation omitted). In Francis v. Allstate Ins. Co., 709 F.3d 362
(4th Cir. 2013), the Fourth Circuit explained that
[t]he removability of a case “depends upon the state of the pleadings
and the record at the time of the application for removal . . . .”
Alabama Great S. Ry. Co. v. Thompson, 200 U.S. 206, 216, 26 S. Ct.
161, 50 L.Ed. 441 (1906); Pullman Co. v. Jenkins, 305 U.S. 534,
538, 59 S. Ct. 347, 83 L.Ed. 334 (1939). If diversity of citizenship,
under 28 U.S.C. § 1332(a), provides the grounds for removal, then
“the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy. . . .” 28 U.S.C.
§ 1446(c)(2). If a complaint “does not allege a specific amount of
damages, the removing defendant must prove by a preponderance of
the evidence that the amount in controversy exceeds [$75,000].” De
Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993).
709 F.3d at 367. In order to satisfy its 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). 2

2

Abrogated on other grounds by Scaralto v. Ferrell, 826 F. Supp.2d 960, 967 (S.D. W. Va.
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Although this Court must strictly construe the removal statute, the Court does not
leave its “common sense behind” in deciding whether a removing party has met its burden. Mullins
v. Harry’s Mobile Homes, 861 F. Supp.2d 22, 24 (S.D. W. Va. 1994). When the amount in
controversy is not apparent on the face of a complaint, the “court may consider a number of
factors, including: “the type and extent of the plaintiff's injuries and possible damages recoverable
therefore, including punitive damages if appropriate.” Scaralto v. Ferrell, 826 F. Supp.2d 960, 964
(S.D. W. Va. 2011). “Properly analyzed, a court is not to use this information to estimate the
amount a jury would award the plaintiff assuming he prevails, but rather to estimate what a
reasonable plaintiff would demand or claim. If 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 (footnote and
citation omitted).

In this case, Plaintiff asks for lost past and future wages. When Defendant
removed this action, it attached a Declaration by Mark Morgan, Defendant’s Chief Executive
Officer. In the Declaration, Mr. Morgan states that, at the time of her termination, Plaintiff was a
full-time employee, working a standard forty-hour workweek, and earning $24.85 per hour. Dec.
of Mark Morgan, ECF No. 1-2. He further states that Plaintiff earned federal wages in the amount
of $45,332.02 in 2012 and $34,443.99 in 2013 (as of September 25, 2013, the day she terminated).
She also received various employee benefits, including a 401(k) retirement savings plan. Id.
Based upon her earning history, Defendant asserts in its Notice of Removal that Plaintiff’s lost past
earnings at that point exceeded $45,000. 3 When this amount is coupled with even a 1:1 punitive

2011).
3

In its Opposition to Plaintiff’s Motion to Remand, Defendant calculates the back wages
more precisely as $51,688 as of September 24, 2014.
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damages award, Defendant asserts the amount in controversy easily exceeds the jurisdictional
threshold--before the Court even considers any additional damages Plaintiff claims.

In her Motion to Remand, however, Plaintiff argues that nowhere on the face of her
Complaint does she specifically request one-year’s lost wages. Although Plaintiff is technically
correct, she does not deny that she is seeking at least a year of back wages, and she is strategically
silent about the matter. In addition, she does not make any argument that Defendant’s position is
inaccurate because she has mitigated her damages by accepting other employment. Clearly, if she
has mitigated her damages, Plaintiff would be aware of this fact and could have easily asserted it in
support of her motion to remand.

Moreover, in her Complaint, Plaintiff expressly requests both past and future lost
wages, indicating an ongoing loss of wages beyond the date she filed her Complaint. She further
claims in her original Complaint that Defendant’s decision to fire her for disclosing fraud and
dangerous patient care was extreme, outrageous, and retaliatory, and violated public policies
protecting whistleblowers. As a result, Plaintiff’s claim is not just for lost past and future wages
and benefits, but includes a request for an award for “humiliation, annoyance, inconvenience,
embarrassment, fear, emotional and mental distress, financial hardship and loss of personal
dignity[,]” and punitive damages. Compl. ¶¶29 & 31. In light of the serious nature and gravity
of these allegations, the Court has no difficulty determining a reasonable plaintiff would demand
or claim more than $75,000 in total damages. Therefore, the Court finds that Defendant has
shown by a preponderance of the evidence that the jurisdictional amount is met, and DENIES
Plaintiff’s Motion to Remand.

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Turning next to Defendant’s Motion to Dismiss, Plaintiff filed an Amended
Complaint after Defendant filed its motion.

As Defendant’s motion refers to the original

Complaint, which no longer is in effect, the Court DENIES Defendant’s Motion to Dismiss AS
MOOT.
III.
CONCLUSION
Accordingly, for the foregoing reasons, the Court DENIES Plaintiff’s Motion to
Remand and DENIES AS MOOT Defendant’s Motion to Dismiss.

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

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February 9, 2015