United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Plaintiff's Motion For Remand [ECF
No. 9]. For the reasons stated below, the court FINDS that
removal was proper and DENIES the motion to remand. Pl.'s
Mot. Remand [ECF No. 9].
Factual and Procedural Background
plaintiff, Jonathan Sword, was employed by the defendants,
Strata Mine Services, LLC, and Strata Products Worldwide,
LLC. Def.'s Notice Removal Ex. 1, at 3 [ECF No. 1-1]. The
plaintiff was terminated on March 16, 2015. Id. at
4. In August 2015, the plaintiff began employment elsewhere,
though it is not clear from the record where he is employed,
what his new position is, or what his earnings are.
February 27, 2017, the plaintiff filed a Complaint against
the defendants, Strata Mine Services, LLC, Strata Products
Worldwide, LLC, Strata Worldwide Holdings, Inc., and their
successors in the Circuit Court of Logan County, West
Virginia. Id. at 1. In the two-count Complaint, the
plaintiff alleges that his termination by the defendants
violated the West Virginia Human Rights Act and substantial
public policy of the State of West Virginia. Id. at
4-5. The plaintiff requests relief consisting of: (1) lost
wages and benefits, back pay, front pay, damages for
indignity, embarrassment, humiliation, annoyance,
inconvenience, and punitive damages in an amount to be
determined by a jury; (2) all remedies afforded under the
West Virginia Human Rights Act and the common law; (3)
damages set forth in the Complaint; (4) pre and post judgment
interest as provided by law; (5) attorney's fees and
costs; and (6) any other and further relief the court deems
just and equitable. Id. at 6-7. The plaintiff did
not request the remedy of reinstatement. Id. at 6.
March 31, 2017, the defendants filed a Notice of Removal
based on diversity jurisdiction. Def.'s Notice Removal.
The defendants allege that there is diversity of citizenship,
because the plaintiff is a citizen and resident of Logan
County, West Virginia, and the defendants are incorporated
under the laws of Delaware and have their principal place of
business in Sandy Springs, Georgia. Id. at 3-4. The
defendants also contend that the amount in controversy
requirement is met, because “[a]lthough the Complaint
does not specify the amount of damages sought by Plaintiff,
the amount in controversy for this case, based on Plaintiffs
allegations as pled in the Complaint, exceeds $75.000.00,
exclusive of interest and costs.” Id. at 4.
April 28, 2017, the plaintiff filed a motion to remand the
case to the Circuit Court of Logan County. Pl.'s Mot.
Remand. The plaintiff acknowledges that there is diversity
among the parties, but claims that the defendants cannot
establish that the amount in controversy exceeds $75, 000.
Pl.'s Mem. Supp. Mot. Remand 2 [ECF No. 10].
action may be removed from state court to federal court if
the case could have been brought originally in federal court.
28 U.S.C. § 1441(b). For an action to be brought
originally in federal court based on diversity jurisdiction,
the court must find that the “matter in controversy
exceeds the sum or value of $75, 000 . . . and is between . .
. [c]itizens of different States.” 28 U.S.C. §
1332. “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction,
the case shall be remanded.” 28 U.S.C. § 1447(c).
is a long-settled principle that the party seeking to
adjudicate a matter in federal court, through removal,
carries the burden of alleging in its notice of removal and,
if challenged, demonstrating the court's jurisdiction
over the matter.” Shumate v. Dyncorp Int'l
LLC, No. 5:11-cv-00980, 2012 WL 830241, at *2 (S.D.
W.Va. Mar. 9, 2012). “But this burden is no greater
than is required to establish federal jurisdiction as alleged
in a complaint.” Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008).
only issue that must be resolved is whether the amount in
controversy exceeds $75, 000. “[I]f there is no ad
damnum clause with an amount over $75, 000, the
defendant must prove by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional
minimum.” Scaralto v. Ferrell, 826 F.Supp.2d
960, 962 (S.D. W.Va. 2011). “The defendant cannot meet
its burden by simply alleging the presence of a sum in excess
of the jurisdictional minimum.” Id. at 963.
“Instead, the defendant must supply evidence, and the
court bases its decision to remove on the record that exists
at the time the petition for removal was filed.”
Id. The defendant's notice of removal, however,
“need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional
threshold.” Dart Cherokee Basin Operating Co., LLC,
v. Owens, 135 S.Ct. 547, 554 (2014).
determine the amount in controversy, when no specific dollar
amount demand is contained in the complaint, courts consider
“the type and extent of the plaintiff's injuries
and the possible damages recoverable therefore, including
punitive damages if appropriate.” Shumate, No.
5:11-cv-00980, 2012 WL 830241, at *4. “[T]he Court in
making this determination ‘is not required to leave its
common sense behind.'” Id. (quoting
Mullins v. Harry's Mobile Homes, Inc., 861
F.Supp. 22, 24 (S.D. W.Va. 1994)).
the defendants concluded that the amount in controversy
exceeds $75, 000 by estimating how much the plaintiff could
receive for each category of damages he seeks. Def.'s
Notice Removal 4-6. At the time of his discharge, the
plaintiff was compensated $52, 000 per year assuming a 40
hour work week at his hourly rate of $25. Id. at 5.
Thus, the defendants estimate the plaintiff's lost wages
claim through February 27, 2017 at approximately $108, 800.
Id. The defendants also allege that benefits are
often calculated as a percentage of base salary. The
defendants calculated the value of the plaintiff's lost
benefits at 25% of his base salary, which the defendants
claim is a conservative estimate, and arrive at a value of
lost benefits of $27, 200. Id. While the defendants
do not specify a particular sum for punitive damages, they
argue that the plaintiff's request for punitive damages
should inflate the amount in controversy. Id. at
5-6. Lastly, the defendants add an additional $30, 000 for
the amount of attorney's fees the ...