United States District Court, N.D. West Virginia
SUSAN CAPRITA, individually and as mother and natural guardian of K.C., a minor and K.C., individually, Plaintiffs,
THE ESTATE OF FRANCES ZILKO, WHEELING ISLAND GAMING, INC., NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA and LIBERTY MUTUAL INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION TO REMAND
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
a personal injury case arising out of a motor vehicle
accident. The plaintiffs filed this civil action in the
Circuit Court of Ohio County, West Virginia. Defendant
Wheeling Island Gaming, Inc., with consent of the other
defendants, removed the case to this Court citing diversity
jurisdiction. The plaintiffs then filed a motion to remand.
This Court ordered the parties to conduct limited discovery
regarding the amount in controversy and to file supplemental
briefs. For the following reasons, the plaintiffs' motion
to remand is denied.
Susan Caprita (“Caprita”) and her minor son
(“K.C.”) were in Caprita's vehicle stopped at
the drive through of a fast-food restaurant in Wheeling, West
Virginia. Defendant Frances Zilko (“Zilko”)
allegedly struck with his vehicle another vehicle and a
billboard support. Zilko then allegedly reversed his vehicle
and struck the front of Caprita's vehicle, injuring
Caprita and K.C. After the accident but before this civil
action was filed, Zilko died with his last residence in
Pittsburgh, Pennsylvania. Caprita alleges that Zilko was
intoxicated during the accident. She alleges that before the
accident Zilko was drinking at the Wheeling Island Casino,
operated by defendant Wheeling Island Gaming, Inc.
(“Wheeling Island”). Caprita alleges that
Wheeling Island's staff continued to serve Zilko despite
his visible intoxication.
alleges a claim for negligence against The Estate of Frances
Zilko. She also alleges a third-party bad faith claim against
Zilko's insurer Nationwide Affinity Insurance Company of
America (“Nationwide”), and an uninsured motorist
claim against her own insurer, Liberty Mutual Fire Insurance
Company (“Liberty Mutual”). She also alleges
a claim for negligence against Wheeling Island.
removal to this Court, the plaintiffs filed a motion to
remand arguing that the amount in controversy does not exceed
$75, 000.00 exclusive of interest and costs because the
plaintiffs allege they previously made a settlement offer of
less than $75, 000.00. There is no dispute that the parties
are completely diverse. After initial briefing, this Court
directed the parties to engage in limited discovery on the
amount in controversy and to file supplemental briefing.
Wheeling Island, Nationwide, and Liberty Mutual each filed
supplemental responses. The plaintiffs did not file a
supplemental brief in support of their motion to remand.
defendant may remove a case from state court to a federal
court with original jurisdiction. 28 U.S.C. § 1441.
Under 28 U.S.C. § 1332(a), district courts have original
jurisdiction where the dispute is between citizens of
different states and the amount in controversy exceeds $75,
000.00. The parties must be completely diverse, meaning that
“the citizenship of each plaintiff must be different
from the citizenship of each defendant.” Hoschar v.
Appalachian Power Co., 739 F.3d 163, 170 (4th Cir.
2014). Diversity is “assessed at the time the action is
filed.” Freeport-McMoRan, Inc. v. K N Energy,
Inc., 498 U.S. 426, 428 (1991).
party seeking removal bears the burden of establishing
federal jurisdiction. See In re Blackwater Security
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006). When
removal is challenged, the defendant must establish
jurisdiction by a preponderance of the evidence. Strawn
v. AT&T Mobility LLC, 530 F.3d 293, 297-98 (4th Cir.
2008). Further, this Court must strictly construe its removal
jurisdiction and remand if federal jurisdiction is doubtful.
Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
Cir. 1999). However, courts are not required “to leave
common sense behind” when determining the amount in
controversy. Mullens v. Harry's Mobile Homes,
861 F.Supp. 22, 24 (S.D. W.Va. 1994). When the amount in
controversy is not apparent on the face of the
plaintiff's complaint, the court must attempt to
ascertain the amount in controversy by considering the
plaintiff's cause of action as alleged, the notice of
removal, and any other relevant materials in the record at
the time of removal. 14C Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 3725.1
(4th ed. 2013). Typically, removal jurisdiction should be
evaluated based solely on the filings available when the
notice of removal was filed. Tamburin v. Hawkins,
No. 5:12CV79, 2013 WL 588739, *1 (N.D. W.Va. Feb. 13, 2013)
(citing Chase v. Shop ‘N Save Warehouse Foods,
Inc., 110 F.3d 424, 428 (7th Cir. 1997)). However, it
may be proper for the court to consider other evidence in the
record where the amount in controversy is not readily
ascertainable from the pleadings. See Wright &
Miller, supra § 3725.1; Mullins, 861
F.Supp. at 23.
is no dispute that complete diversity exists. Rather, the
plaintiffs argue that the amount in controversy does not
exceed $75, 000.00 exclusive of interest and costs. Wheeling
Island argues that the amount in controversy exceeds $75,
000.00 because the plaintiffs' responses to
interrogatories show their expected damages far exceed the
their responses to interrogatories submitted during the
permitted limited discovery period, the plaintiffs claim
future lost earnings of $650, 000.00 to $2, 170, 000.00, past
medical expenses of $7, 307.77, past lost wages of $792.00,
vehicle damage of $4, 121.48, as well as indeterminable
damages for subjective harm and future medical expenses.
See ECF No. 43-1. The plaintiffs also seek punitive
damages. See Asbury-Castro v. GlaxoSmithKline, Inc.,
352 F.Supp.2d 729, 732 (N.D. W.Va. 2005) (noting that
“[u]nder West Virginia law, a good faith claim for
punitive damages may augment compensatory damages in
determining the amount in controversy unless . . . [it is]
legal[ly] certain that [the] plaintiff cannot recover
punitive damages in the action”). Thus, it is clear
that the plaintiffs seek to recover more than $75, 000.00.
the plaintiffs previously argued that the amount in
controversy is below the jurisdictional amount because they
previously made a settlement demand for less than $75,
000.00. However, a settlement demand or offer is not
necessarily determinative of the amount in controversy.
Regardless, the plaintiffs' prior demand was for $150,
000.00 from the Estate of Zilko, which is double the
jurisdictional amount and would not necessarily cover any
other defendant's ...