United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Amended Motion to
Remand. (ECF No. 7.) For the reasons herein, the
Court GRANTS IN PART and DENIES IN
PART the motion and REMANDS this
case to the Circuit Court of Kanawha County, West Virginia.
case arises out of an injury Plaintiff allegedly suffered
when he picked up a bag of topsoil manufactured by Defendant
The Scotts Company LLC (“Scotts”). (ECF No. 8 at
1.) The alleged injury occurred at Defendant Wal-Mart Stores,
Inc.'s (“Wal-Mart”) store in Ripley, West
Virginia. (Id.) Plaintiff is a resident of West
Virginia, (ECF No. 1-1 at 1 ¶ 1), Scotts is a
corporation existing under the laws of Ohio,  (id.
¶ 2; ECF No. 3 at 2), and Wal-Mart is a corporation
existing under the laws of Delaware with its principal place
of business in Arkansas, (ECF No. 1 at 3; ECF No. 1-1 at 1
¶ 3; ECF No. 3 at 2).
Complaint filed in state court and attached to
Defendants' Notice of Removal alleges that on June 4,
2015, Plaintiff was a customer at Wal-Mart's Ripley store
and “was picking up a bag of Scotts Premium Topsoil . .
. at which time there was a razor blade embedded in the
sealed bag that lacerated the Plaintiff's forearm.”
(ECF No. 1-1 at 2 ¶¶ 6-7.) Plaintiff alleges that
he “incurred significant expenses for medical and
hospital treatment and services for the treatment of his
injuries, ” and will require future care and treatment
“due to the permanent and lasting effects of his
injuries.” (Id. ¶¶ 9-10.) The
Complaint asserts three counts, including claims of
negligence and strict liability against Scotts and a
negligence claim against Wal-Mart. (Id. at 2- 4
¶¶ 5-26.) Plaintiff requests relief in the forms of
compensatory damages, attorney fees and costs, and other
relief deemed appropriate. (Id. at 5.)
filed his Complaint in the Circuit Court of Kanawha County,
West Virginia, on June 5, 2017. (ECF No. 1-1 at 1.)
Defendants removed the case to this Court on July 11, 2017.
(ECF No. 1.) In the Notice of Removal, Defendants assert that
the sole basis for this Court's subject-matter
jurisdiction over this case is diversity pursuant to 28
U.S.C. § 1332. (See Id. at 2.)
filed the current Amended Motion to Remand on July 19, 2017,
in which he asserts that this Court lacks subject-matter
jurisdiction over the matter because the amount in
controversy is below the $75, 000 requirement for diversity
jurisdiction. (See ECF No. 8 at 2-4.) Plaintiff also
moves for an award of attorneys' fees, costs, and
expenses. (Id. at 4.) Defendants filed their joint
response to Plaintiff's motion on July 31, 2017, (ECF No.
9), and Plaintiff replied on August 7, 2017, (ECF No. 10).
The motion is fully briefed and ripe for adjudication.
III of the United States Constitution provides, in pertinent
part, that “[t]he judicial Power shall extend . . . to
Controversies . . . between Citizens of different
States.” U.S. Const. art. III, § 2. “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 . . . citizens of different States.” 28 U.S.C.
provided a right to remove a case from state to federal court
under 28 U.S.C. § 1441. This statute states, in relevant
Except as otherwise expressly provided by Act of Congress,
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 or the
defendants, 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). Because removal of civil cases from
state to federal court infringes state sovereignty, federal
courts strictly construe the removal statute and resolve all
doubts in favor of remanding cases to state court. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
109 (1941); see also Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because
removal jurisdiction raises significant federalism concerns,
we must strictly construe removal jurisdiction.”
party asserting federal jurisdiction bears the burden of
proof. Landmark Corp. v. Apogee Coal Co., 945
F.Supp. 932, 935 (S.D. W.Va. 1996). “A defendant that
removes a case from state court in which the damages sought
are unspecified, asserting the existence of federal diversity
jurisdiction, must prove by a preponderance of the evidence
that the value of the matter in controversy exceeds the
jurisdictional amount.” Id. (citing Gaus
v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992)).
“This test is framed alternatively as a requirement
that a defendant demonstrate that it is more likely than not
that the amount in controversy exceeds the jurisdictional
amount.” Id. (citation omitted). “To
satisfy this burden, a defendant must offer more than a bare
allegation that the amount in controversy exceeds $75,
000.” Judy v. JK Harris & Co., No. 2:10-
cv-01276, 2011 WL 4499316, at *3 (S.D. W.Va. Sept. 27, 2011)
(citation omitted). The defendant must supply evidence
regarding the amount at issue. See McCoy v. Erie Ins.
Co., 147 F.Supp.2d 481, 489 (S.D. W.Va. 2001). “In
so doing, he may rely upon the entirety of the facts and
circumstances comprising the plaintiff's damages
claim.” Judy, 147 F.Supp.2d at 489 (citation
evaluating a party's claim to federal jurisdiction, a
court should look to the circumstances as they existed at the
time the notice of removal was filed. See Dennison v.
Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir.
2008) (“[F]ederal jurisdiction . . . is fixed at the
time the . . . notice of removal is filed.” (citation
omitted)). In particular, where the plaintiff's monetary
demand is not specified in the complaint, “[t]he value
of the matter in controversy . . . is determined by
considering the judgment that would be entered if plaintiff
prevailed on the merits.” Landmark Corp., 945
F.Supp. at 936-37 (citation omitted). In calculating the
amount in controversy, a court may consider the entire record