United States District Court, N.D. West Virginia
NORMAN E. JEFFRIES, Plaintiff,
CU RECOVERY, INC. and GREATER IOWA CREDIT UNION, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND AND DENYING PLAINTIFF'S REQUEST FOR
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
plaintiff, Norman E. Jeffries, originally filed his class
action complaint in the Circuit Court of Ohio County, West
Virginia, against defendants CU Recovery, Inc. (“CU
Recovery”) and Greater Iowa Credit Union
(“GICU”). The plaintiff, individually and on
behalf of a class of West Virginia consumers, alleges that
the defendants violated Chapter 46A, Article 2 of the West
Virginia Code by attempting to collect debts that were barred
by the applicable statute of limitations. The complaint makes
claims for (1) statutory violations and (2) unjust
enrichment. The plaintiff seeks actual damages, statutory
damages, debt collection relief, and an award of
attorneys' fees and costs.
CU Recovery timely removed the civil action to this Court.
Defendant GICU consented to the removal of this civil action.
In the notice of removal, CU Recovery asserts that this Court
has jurisdiction over the matter pursuant to 28 U.S.C. §
1332 because the parties are of diverse citizenship and the
amount in controversy exceeds $75, 000.00 exclusive of
interests and costs. CU Recovery states that there is
complete diversity because the plaintiff is a resident of
West Virginia, CU Recovery is a Minnesota corporation with
its principal place of business in Minnesota, and GICU is an
Iowa credit union with its principal place of business in
Iowa. CU Recovery states that the amount in controversy
exceeds $75, 000.00 exclusive of interests and costs because
the complaint seeks statutory damages and debt forgiveness in
excess of $50, 000.00, statutory damages based on attempts by
GICU to contact the plaintiff in West Virginia, actual
damages and/or disgorgement or restitution of monies
collected, and attorneys' fees accrued in the prosecution
of this litigation.
plaintiff then filed a motion to remand, in which he argues
that the defendants have failed to satisfy their burden of
proving that the amount in controversy exceeds $75, 000.00
exclusive of interests and costs. The plaintiff's motion
to remand also seeks an award of attorneys' fees under 28
U.S.C. § 1447(c). The plaintiff argues that remand is
proper because the complaint does not provide any monetary
figures and does not demand a sum certain. The plaintiff
contends that the defendants have not satisfied their burden
of proving that the value of the claim exceeds $75, 000.00
exclusive of interests and costs. Specifically, the plaintiff
contends that the only actual damages figure provided by the
defendants is the amount of debt, which is $20, 550.00.
plaintiff argues that the defendants' attempt “to
increase the amount in controversy by pointing to the
plaintiff's claim for statutory damages” must fail
because the statutory damages cap is $1, 000.00 under West
Virginia Code § 46A-5-101. The plaintiff points out that
the record contains only one debt-related communication, a
May 12, 2016 letter attached to the complaint, and, thus, the
claim for statutory damages is $1, 000.00 for removal
purposes. Although the defendants suggest there have been as
many as six communications, the plaintiff argues there is no
proof to support that assertion. The plaintiff also contends
that it is insufficient in consumer protection cases for the
defendants to “simply cite the categories of damages
that the Plaintiff is seeking to recover and then leap to the
conclusion that $75, 000.00 is in play.”
CU Recovery filed a response in opposition to the
plaintiff's motion to remand. In response, CU Recovery
argues that its notice of removal specifically addressed each
component of the damages/relief demanded by the plaintiff in
his complaint. CU Recovery argues that “it made
reasonable estimates, inferences, and deductions to conclude
that the amount in controversy, when considering the numerous
components of damages demanded by Plaintiff, exceeded $75,
000.00.” Specifically, CU Recovery argues that it
identified: “(1) estimated actual damages of $5, 000;
(2) estimated maximum statutory damages of almost $30, 000;
(3) debt cancellation relief of over $20, 000; (4) an
estimated attorneys' fees range of $18, 000 to $25, 000;
and (5) any additional actual or statutory damages
attributable to actions by GICU, restitution,
disgorgement.” CU Recovery also contends that the
plaintiff is not entitled to an award of attorneys' fees
because it has set forth sufficient information to allow the
Court to determine that removal is proper.
plaintiff filed a reply to CU Recovery's response in
opposition. In reply, the plaintiff argues that CU Recovery
blurs the distinction between the pleading standard applied
in removal cases and the applicable standard of proof. The
plaintiff cites Dart Cherokee Basin Operating Co. v.
Owens, 135 S.Ct. 547, 554 (2014), which states that,
once removal is challenged, “both sides submit proof
and the court decides, by a preponderance of the evidence,
whether the amount-in controversy requirement has been
satisfied.” The plaintiff contends that he never
questioned the sufficiency of the notice of removal. Rather,
by filing his motion to remand, the plaintiff argues that he
made a jurisdictional challenge as to the amount in
reasons set forth below, the plaintiff's motion to remand
is granted and the plaintiff's motion for attorneys'
fees is denied.
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 of interest and costs pursuant to 28 U.S.C.
§ 1332(a). However, if federal jurisdiction arises only
by virtue of the parties' diverse citizenship, such an
action “shall be removable only if none of the . . .
defendants is a citizen of the State in which such action is
brought.” Tomlin v. Office of Law Enf't Tech.
Commercialization, Inc., No. 5:07CV42, 2007 WL 1376030,
at *1 (N.D. W.Va. May 7, 2007). The party seeking removal
bears the burden of establishing federal jurisdiction.
See In re Blackwater Sec. Consulting, LLC, 460 F.3d
576, 583 (4th Cir. 2006); 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.
Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir.
1999); Mulcahey, 29 F.3d at 151.
the court is limited to a consideration of facts on the
record at the time of removal. See Lowrey v. Ala. Power
Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007) (“In
assessing whether removal was proper . . . the district court
has before it only the limited universe of evidence available
when the motion to remand is filed.”); O'Brien
v. Quicken Loans, Inc., No. 5:10CV110, 2011 WL 2551163
(N.D. W.Va. June 27, 2011); Marshall v. Kimble, No.
5:10CV127, 2011 WL 43034, at *3 (N.D. W.Va. Jan. 6, 2011)
(“The defendant's removal cannot be based on
speculation; rather, it must be based on facts as they exist
at the time of removal.”); Fahnestock v.
Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.Va.
May 12, 2011) (“The amount in controversy is determined
by considering the judgment that would be entered if the
plaintiffs prevailed on the merits of his case as it stands
at the time of removal” (internal citations omitted)).
Court recognizes that “a defendant's notice of
removal need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional
threshold.” Dart Cherokee Basin Operating Co. v.
Owens, 135 S.Ct. 547, 555 (2014). Nonetheless, this
Court has previously found that Dart does not
require it to grant jurisdictional discovery and, thus, this
Court has routinely exercised its discretion to deny such
requests. See Antal v. State Farm Mut. Ins. Co., No.
5:15CV36, 2015 WL 2412358, at *3 (N.D. W.Va. May 20, 2015)
(denying the plaintiff's request for jurisdictional
discovery upon finding “that the language contained in
. . . 28 U.S.C. § 1446(c)(3)(A) is related to discovery
taken in the state court, not discovery that is taken in the
federal court after removal”); O'Brien v.
Falcon Drilling Co., No. 5:15CV13, 2015 WL 1588246, at
*6 (N.D. ...