McCloud v. Followay et al
Filing
14
MEMORANDUM OPINION AND ORDER denying Plaintiff's 5 MOTION to Remand to Circuit Court of Wayne County, West Virginia. Signed by Judge Robert C. Chambers on 10/17/2019. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
AMANDA McCLOUD,
Plaintiff,
v.
CIVIL ACTION NO. 3:19-0311
DAYNA MARIE FOLLOWAY and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Amanda McCloud’s Motion to Remand to the
Circuit Court of Wayne County, West Virginia. ECF No. 5. Defendant State Farm Mutual
Automobile Insurance Company (hereinafter Defendant State Farm) removed this action from
Wayne County Circuit Court pursuant to 28 U.S.C. § 1441, 1 asserting diversity jurisdiction under
28 U.S.C. § 1332. However, Plaintiff argues that Defendant State Farm has failed to demonstrate
the amount in controversy exceeds $75,000, a prerequisite to this Court’s jurisdiction under
§ 1332. 2 Upon review, the Court finds Defendant State Farm met its burden to establish
jurisdiction and, therefore, the Court DENIES Plaintiff’s motion.
Subsection (a) of § 1441 provides, in relevant part: “any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed
by the defendant . . . , to the district court of the United States for the district and division embracing
the place where such action is pending.” 28 U.S.C. § 1441(a).
1
Subsection (a)(1) states: “The district courts shall 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--(1) citizens of different States[.]” 28 U.S.C. § 1332(a)(1).
2
In her Complaint, Plaintiff alleges she incurred “severe personal injuries and
damages” as a result of an auto accident she had with Defendant Dayna Marie Followay. Compl.
at 2, ¶5, ECF No. 1-1. Plaintiff settled her claim with Ms. Followay for $25,000 and filed an
underinsurance claim with Defendant State Farm, demanding the policy limits of $100,000. 3 Id.
at 4, ¶6. Defendant State Farm rejected the demand and offered Plaintiff $500. Id. at 4, ¶7. Plaintiff
repeated her demand and submitted additional medical evidence. Id. at 4, ¶8. At that time, Plaintiff
states she had incurred $25,438.65 in medical specials. Id. at 4, ¶9. Ultimately, Defendant State
Farm offered Plaintiff $2,000 to settle her claim. Id. at 4, ¶10. Plaintiff rejected the offer, requested
a reasonable settlement offer from Defendant State Farm, and filed this action, which includes
claims for breach of contract, for violations of the West Virginia Unfair Trade Practices Act, and
for common law bad faith. Plaintiff does not demand a specific dollar amount in her Complaint.
When a case is removed based upon § 1332, it is the defendant’s burden to
demonstrate diversity of citizenship exits and establish by a preponderance of the evidence the
amount in controversy exceeds $75,000. Strawn v. AT & T Mobility LLC, 530 F.3d 293, 296 (4th
Cir. 2008) (stating “it is the defendant who carries the burden of alleging in his notice of removal
and, if challenged, demonstrating the court's jurisdiction over the matter” (citations omitted)); see
also McCoy v. Erie Ins. Co., 147 F.Supp.2d 481, 486 (S.D. W. Va. 2001) (“When a case has been
removed, the defendant bears the burden of showing federal jurisdiction has been invoked
properly.” (Citation omitted)). If a plaintiff does not make a demand for a specific dollar amount
in the complaint, it is the obligation of the Court to decide whether a defendant has met its burden.
See McCoy, 147 F.Supp.2d at 489. In making its decision, the Court should exercise its common
3
Ms. Followay was named in this action as a nominal defendant.
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sense. Id. The Court also 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. (internal quotation marks
and citation omitted). For instance, the Court may consider the plaintiff’s injuries, the expenses
and losses a plaintiff incurred prior to removal, a request for punitive damages, and any settlement
demands Plaintiff made prior to removal, “although the weight to be given such demands is a
matter of dispute among courts.” Id. (internal quotation marks and citations omitted); Chandler v.
Ultimate Health Servs., Inc., No. 3:14-cv-27340, 2015 WL 521235, at *2 (S.D. W. Va. Feb. 9,
2015) (stating, “[w]hen 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” (internal
quotation marks and citation omitted)). “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.” Scaralto v.
Ferrell, 826 F.Supp.2d 960, 968 (S.D. W. Va. 2011) (footnote and citation omitted).
Reviewing the allegations of Plaintiff’s Complaint in this case, the Court has no
difficulty finding that Defendant State Farm has met its burden. At the time of removal, Plaintiff
had $25,438.65 in medical specials, with the possibility of future treatment, and made a settlement
demand for $100,000. In her Complaint, she seeks compensation for her damages, aggravation,
annoyance, and inconvenience. She also seeks damages for violations of the West Virginia Unfair
Practices Act and punitive damages. In light of these factors, the Court finds that a reasonable
plaintiff would demand more than $75,000 and, indeed, Plaintiff in this case actually did so by
seeking the $100,000 policy limits. Although Plaintiff argues that she will have to awarded more
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than $35,000 to receive anything in this case because she received $25,000 from Ms. Followay to
settle and a $10,000 medical payment from Defendant State Farm, it is not the amount Plaintiff
ultimately collects that determines whether the threshold amount for jurisdiction is met, as stated
earlier, it is the amount a reasonable plaintiff would demand. Here, the Court finds a reasonable
plaintiff certainly would demand in excess of $75,000. See, e.g., Workman v. Figueroa, No. 3:060648, 2006 WL 3359007, at *1 (S.D. W. Va. Sept. 27, 2006) (finding “medical expenses exceeding
$15,000 with some future or continuing treatment expected,” a settlement demand above $75,000,
and the possibility of punitive damages sufficient to met jurisdictional requirements).
Accordingly, for the foregoing reasons, the Court DENIES Plaintiff Amanda
McCloud’s Motion to Remand to the Circuit Court of Wayne County, West Virginia. ECF No. 5.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:
October 17, 2019
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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