Osburn v. Precision Cast Corporation

Filing 14

MEMORANDUM OPINION AND ORDER denying 7 MOTION by Taeger Osburn to Remand Case to Circuit Court of Cabell County; granting 8 MOTION by Taeger Osburn for Leave to Amend Complaint and/or Substitution of Parties; denying as moot 4 MOTION by Precisi on Cast Corporation to Dismiss Complaint; directing Plaintiff to file an Amended Complaint by 12/7/2017; canceling the scheduling conference scheduled for 12/18/2017 at 11:30 a.m. Signed by Judge Robert C. Chambers on 11/30/2017. (cc: attys; any unrepresented parties) (mkw)

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

TAEGER OSBURN,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-4236

PRECISION CAST CORPORATION
d/b/a HUNTINGTON ALLOYS,
Defendant.

MEMORANDUM OPINION AND ORDER
Now pending before the Court are Plaintiff’s Motion to Remand (ECF No. 7), Plaintiff’s
Motion for Leave to Amend Complaint and/or Substitute Parties (ECF No. 8), and Defendant’s
Motion to Dismiss (ECF No. 4). For reasons specified herein, Plaintiff’s Motion to Remand is
DENIED, Plaintiff’s Motion to Amend is GRANTED, and Defendant’s Motion to Dismiss is
DENIED as moot.
I.

Background

Plaintiff filed the present Complaint in Cabell County, West Virginia on May 12, 2017
(ECF No. 1). Defendant removed the case to this Court on October 27, 2017 based on both federal
question and diversity jurisdiction (ECF No. 1). Plaintiff filed a Motion to Remand on November
9, 2017, alleging that there is no federal question presented and that the amount in controversy is
less than $75,000, thereby defeating diversity jurisdiction (ECF No. 7).
While his Motion to Remand has been pending, Plaintiff has also filed a Motion to Amend
(ECF No. 9). Plaintiff admits that he mistakenly named the wrong party as a defendant in his case,

but requests leave to amend his Complaint to name the proper defendant (ECF No. 8). Though
Defendant opposes the motion, arguing that amendment would be futile, Defendant also asserts
that it was inappropriately named in this suit (ECF No. 11).
Finally, though it maintains that it was improperly named as a party in this suit, Defendant
has also asked this Court to dismiss Plaintiff’s Complaint based on preemption and statute of
limitations defects (ECF No. 5). Plaintiff opposes dismissal (ECF No. 8).
II.

Analysis

a. Motion to Remand
A civil action brought in state court over which federal courts have original jurisdiction
may be removed to federal court by a named defendant in the action. 28 U.S.C. § 1441(a) (2017).
Federal district courts have original jurisdiction over a civil action in which the amount in
controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. §
1332 (2011). Where a party to the action is a corporation, the corporation is deemed to be a citizen
of both the state where it is incorporated and the state where it has its principal place of business.
Hertz Corp. v. Friend, 559 U.S. 77, 88 (2010). “Defendants seeking removal bear the burden of
demonstrating that jurisdiction is proper.” Bartnikowski v. NVR, Inc., 307 Fed.Appx. 730, 734 (4th
Cir. 2009) (unpublished opinion). A defendant must prove proper jurisdiction by a preponderance
of the evidence. Id. See also McCoy v. Erie Ins. Co., 147 F.Supp.2d 481, 489 (S.D.W.Va. 2001).
i. Calculation of Amount in Controversy
Where a plaintiff does not specify a dollar amount in his prayer for relief, the Court must
determine the amount in controversy in a given case. McCoy, 147 F.Supp.2d at 489. To do so, the
Court should use common sense to consider what the plaintiff would recover if he was to prevail

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on the merits of his case. Id. The Court should “look to the entire record before it and make an
independent evaluation as to whether or not the jurisdictional amount is in issue.” Id.
In the present Complaint, Plaintiff alleges that he has suffered “mental anguish, worry and
distress, loss of income and substantial annoyance and inconvenience” (ECF No. 1-1). Plaintiff
does not, however, list a sum certain in his prayer for relief (ECF No. 1-1). In its Notice of
Removal, Defendant informed the Court that, at the time Plaintiff was discharged from his
employment, he was earning approximately $102,648.00 per year in income (ECF No. 1). Plaintiff
alleges that he was wrongfully discharged in June, 2015 and that he has suffered over two years
of lost wages as a result (ECF No. 1-1). Solely in calculation of alleged lost income, then, the
amount Plaintiff seeks in damages far exceeds $75,000. Accordingly, the jurisdictional
requirements for the amount in controversy are met. See Shumate v. DynCorp Intern. LLC, 2012
WL 830241, at *5 (S.D.W.Va. Mar. 9, 2012) (unpublished opinion) (finding that the amount in
controversy requirement was satisfied when the plaintiff claimed lost wages of $135,000 in
addition to other relief).
ii. Effect of Attempted Stipulation
Plaintiff attempts to refute Defendant’s assertion of the amount in controversy in this case
by including in his Motion to Remand: “The Plaintiff, Taeger Osburn hereby stipulates that the
amount in controversy is less than Seventy-Five Thousand ($75,000.00) Dollars” (ECF No. 7). It
is well-established law, however, that “plaintiffs cannot avoid federal jurisdiction by later
stipulating to an amount of damages below the jurisdictional minimum.” Asociacion Nacional de
Pescadores a Pequena Escala O Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988
F.2d 559, 564 (5th Cir. 1993) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

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292 (1938)), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 222 (5th
Cir. 1998).
In order to use a stipulation of the amount in controversy to successfully avoid federal
jurisdiction in this District, a plaintiff must provide a “formal, truly binding, pre-removal
stipulation signed by counsel and his client explicitly limiting recovery.” McCoy, 147 F.Supp.2d
at 485. See also 14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3702.4 (4th ed. 2017) (“[T]o be effective, . . . any [stipulation limiting
damages sought] must be filed prior to removal.”). Some courts have held that the stipulation must
also be filed contemporaneously with the complaint and must be signed and notarized. Kittredge
v. Navy Fed. Credit Union, 2016 WL 47877, at *2 (N.D.W.Va. Jan. 4, 2016) (unpublished
opinion). Finally, some courts require that a stipulation accompany a complaint that states a sumcertain prayer for relief in order to be effective. McCoy, 147 F.Supp.2d at 485.
Oftentimes, informal and non-binding stipulations, even if filed before removal, will not
prevent federal jurisdiction. See Dash v. FirstPlus Home Loan Owner Trust, 248 F.Supp.2d 489,
450 (M.D.N.C. 2003) (declining to remand even though the plaintiffs had included in their
complaint a non-binding stipulation that they would not seek more than $75,000 in compensatory
damages because defendants showed, by a preponderance of the evidence, that the damages
plaintiffs pled, if proven, would entitle the plaintiffs to recovery in excess of $75,000). Likewise,
even properly executed stipulations may fail to prevent federal jurisdiction if the complaint fails
to state a sum certain prayer for relief. See Kittredge, 2016 WL 47877, at *3 (finding that even an
enforceable, unambiguous stipulation that damages were less than $75,000 that had been submitted
together with the plaintiff’s complaint in state court did not, on its own, require remand because
the plaintiff had failed to include a sum-certain prayer for relief in the complaint).

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Defective stipulations filed after removal are even less likely to succeed in preventing the
exercise of federal jurisdiction. See McCoy, 147 F.Supp.2d at 485. Courts will remand cases to
state court based on post-removal stipulations of amounts in controversy only under unique
circumstances. See Walker v. Lowe’s Home Centers, Inc., 2010 WL 1404300, at *2 (S.D.W.Va.
Mar. 30, 2010) (unpublished opinion) (remanding where the defendant joined in the post-removal
stipulation that damages would not exceed $75,000).
In this case, Plaintiff’s attempt to stipulate to an amount in controversy below jurisdictional
limits is defective for many reasons. First, Plaintiff has made the attempt only after removal has
already been effectuated. He did not file any stipulation or affidavit with his Complaint in state
court, let alone one that was formally executed and unambiguously enforceable there.
Additionally, Plaintiff’s assertion of his case’s value in his Motion to Remand is not a binding
stipulation of the kind required by courts in this District, nor does his Complaint state a prayer for
relief for a sum certain. Finally, Plaintiff’s request for remand does not fall within an exception or
qualify as a unique circumstance such that remand would be warranted. Defendant contests
Plaintiff’s request for remand and Plaintiff has shown no other extenuating circumstances that
except his case from the general rules set forth here.
Plaintiff’s attempted stipulation, therefore, does not change the Court’s findings on the
issue of the amount in controversy in this case. Accordingly, the Court FINDS that Defendant has
proven by a preponderance of the evidence that the amount in controversy in this case exceeds
$75,000.
iii. Diversity of Citizenship
As for citizenship, Plaintiff noted in his Complaint that he is a resident of Wayne County,
West Virginia (ECF No. 1-1). Defendant asserts in its Notice of Removal that it is a citizen of

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Oregon both because it is incorporated in Oregon and because its principal place of business is
located in Portland, Oregon (ECF No. 1). Because Plaintiff is a citizen of West Virginia and
Defendant is a citizen of Oregon, the Court FINDS that there is diversity of citizenship among the
parties in this case.
Defendant has proven, by a preponderance of the evidence, both the amount in controversy
and the diversity requirements of diversity jurisdiction. Accordingly, the Court FINDS that it has
original jurisdiction over the present matter and DENIES Plaintiff’s Motion to Remand (ECF No.
7). Because removal is proper on the basis of diversity jurisdiction, the Court does not reach the
issue of federal question jurisdiction at this time.
b. Motion to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that a plaintiff may amend his Complaint
with the opposing party’s written consent or with the leave of court. “The court should freely give
leave when justice so requires.” Fed. R. Civ. Pro. 15(a)(2). The Fourth Circuit has interpreted this
language liberally, ruling that leave to amend “should be denied only when the amendment would
be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or
the amendment would be futile.” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)
(emphasis in original). Because Precision Castparts Corp. is allegedly not the proper defendant in
this case, the Court does not reach its argument of futility of amendment. The Court finds no bad
faith on Plaintiff’s part nor does it find that Defendant would be prejudiced by amendment.
Plaintiff’s Motion to Amend (ECF No. 8) is therefore GRANTED. Plaintiff is ORDERED to file
an Amended Complaint with the Court within seven days from the date of this Order.

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c. Motion to Dismiss
Plaintiff and Defendant have both acknowledged to the Court that Defendant is not the
proper defendant to be named in this case. Accordingly, Defendant’s Motion to Dismiss (ECF No.
4) is DENIED as moot. Defendant will presumably be dismissed from this case following
Plaintiff’s amendment to his Complaint.
III.

Conclusion

For the foregoing reasons, Plaintiff’s Motion to Remand (ECF No. 7) is DENIED,
Plaintiff’s Motion for Leave to Amend Complaint and/or Substitute Parties (ECF No. 8) is
GRANTED, and Defendant’s Motion to Dismiss (ECF No. 4) is DENIED as moot. Plaintiff is
ORDERED to file an Amended Complaint no later than December 7, 2017. Because the Court
has granted Plaintiff’s Motion to Amend and a new defendant will be named in this case, the Court
CANCELS the scheduling conference currently scheduled for December 18, 2017 at 11:30 a.m.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

November 30, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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