Olson v. Gray, No. 5:2009cv00052 - Document 12 (N.D.W. Va. 2009)
Court Description: MEMORANDUM OPINION AND ORDER granting Pla's 4 Motion to Remand. This case is DISMISSED and Clerk is directed to enter judgment. Signed by Senior Judge Frederick P Stamp, Jr on 7/22/09. (c to counsel, Circuit Court of Ohio Co. w/certified copy of docket sheet)(mji)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA JACQUELINE R. OLSON, Plaintiff, v. Civil Action No. 5:09CV52 (STAMP) AARON L. GRAY, Defendant. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF S MOTION TO REMAND I. Background The above-styled civil action is before this Court as a result of a notice of removal filed by the defendant, in which the defendant asserts that federal jurisdiction is pursuant to 28 U.S.C. § 1332. The plaintiff commenced this civil action in the Circuit Court of Ohio County, West Virginia, alleging that the defendant s negligent operation of his vehicle caused a collision with the plaintiff s vehicle resulting in injuries and damages to the plaintiff. Following removal of the action to this Court, the plaintiff filed a motion to remand to which the defendant did not respond. For the reasons set forth below, the plaintiff s motion to remand is granted. II. Applicable Law A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75,000.00, exclusive interests and costs pursuant to 28 U.S.C. § 1332(a). seeking removal jurisdiction. bears the burden of of The party establishing federal See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Id. III. Discussion In her motion to remand, the plaintiff asserts that this action must be remanded to state court because the defendant has failed to prove that the amount in controversy in this case is in excess of $75,000.00, exclusive of interests and costs. This Court agrees. The burden of establishing that the amount in controversy exceeds $75,000.00, exclusive of interests and costs, rests with the party seeking removal. Mulcahey, 29 F.3d at 151. This Court has consistently applied the preponderance of evidence standard to determine whether a defendant has met its burden of proving the amount in controversy. When no specific amount of damages is set forth in the complaint, the defendant bears the burden of proving that the claim meets the requisite jurisdictional amount. Mullins v. Harry s Mobile Homes, Inc., 861 F. Supp. 22, 23 (S.D. W. Va. 1994). In such circumstances, the Court may consider the entire 2 record before it determine whether and may conduct its own independent inquiry to the jurisdictional minimum. amount in controversy satisfies the Id. In this case, the plaintiff s complaint does not set forth a total monetary sum requested. Rather, in her complaint, the plaintiff requests only compensatory and punitive damages in an amount deemed fair, just and equitable by the court. Compl. 3.) (Pl. s In filing the notice of removal, the defendant states that the amount in controversy is in excess of the jurisdictional minimum because the plaintiff, in addition to requesting compensatory damages, also seeks punitive damages. After careful consideration of the record in this case, this Court finds that the defendant has not met his burden of proof with regard to the amount in controversy. The defendant s removal cannot be based on speculation; rather, it must be based on facts as they exist at the time of removal. See Varela v. Wal-Mart Stores, East, Inc., 86 F. Supp. 2d 1109, 1112 (D.N.M. 2000). The mere threat of punitive damages, without more, does not give rise to federal jurisdiction. Landmark Corp. v. Apogee Coal Co., 945 F. Supp. 932 (S.D. W. Va. 1996). Here, the defendant has offered no competent proof or tangible evidence that the amount in controversy exceeds, or it is even highly conceivable that it will exceed, $75,000.00, exclusive of interests and costs. See Etchison v. Westfield Co., 2006 U.S. Dist. LEXIS 70574 (Sept. 26, 2006) (unpublished) (holding that 3 federal diversity jurisdiction was properly based on evidence that the plaintiff was seeking pre-judgment interest, post-judgment interest, attorney s fees, costs on punitive damages, and made prior demands Considering in all the of amount the of evidence, $70,000.00 this and Court $3 finds million). that the defendant has not shown by a preponderance of the evidence that the plaintiff will recover damages in excess of the jurisdictional minimum. Therefore, the plaintiff s motion to remand must be granted. Nothing prevents, however, the defendant from filing a second notice of removal upon receipt of an amended complaint or some other paper from which it may first be ascertained that the case is one which has become removable. IV. 28 U.S.C. § 1446(b).1 Conclusion For the reasons stated above, the plaintiff s motion to remand is hereby GRANTED. Accordingly, it is ORDERED that this case be REMANDED to the Circuit Court of Ohio County, West Virginia. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. IT IS SO ORDERED. The Clerk is directed to transmit a copy of this memorandum opinion and order to counsel of record herein and to the Clerk of the Circuit Court of Ohio County, West Virginia. 1 Pursuant to Of course, the case may not be removed on the basis of diversity more than one year after commencement of the action. 28 U.S.C. § 1446(b). 4 Federal Rule of Civil Procedure 58, the Clerk is directed to enter judgment on this matter. DATED: July 22, 2009 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 5
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