United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
pending before the Court are Plaintiff's Motion to Remand
(ECF No. 7), Plaintiff's Motion for Leave to Amend
Complaint and/or Substitute Parties (ECF No. 8), and
Defendant's Motion to Dismiss (ECF No. 4). For reasons
specified herein, Plaintiff's Motion to Remand is
DENIED, Plaintiff's Motion to Amend is
GRANTED, and Defendant's Motion to
Dismiss is DENIED as moot.
filed the present Complaint in Cabell County, West Virginia
on May 12, 2017 (ECF No. 1). Defendant removed the case to
this Court on October 27, 2017 based on both federal question
and diversity jurisdiction (ECF No. 1). Plaintiff filed a
Motion to Remand on November 9, 2017, alleging that there is
no federal question presented and that the amount in
controversy is less than $75, 000, thereby defeating
diversity jurisdiction (ECF No. 7).
his Motion to Remand has been pending, Plaintiff has also
filed a Motion to Amend (ECF No. 9). Plaintiff admits that he
mistakenly named the wrong party as a defendant in his case,
but requests leave to amend his Complaint to name the proper
defendant (ECF No. 8). Though Defendant opposes the motion,
arguing that amendment would be futile, Defendant also
asserts that it was inappropriately named in this suit (ECF
though it maintains that it was improperly named as a party
in this suit, Defendant has also asked this Court to dismiss
Plaintiff's Complaint based on preemption and statute of
limitations defects (ECF No. 5). Plaintiff opposes dismissal
(ECF No. 8).
Motion to Remand
action brought in state court over which federal courts have
original jurisdiction may be removed to federal court by a
named defendant in the action. 28 U.S.C. § 1441(a)
(2017). Federal district courts have original jurisdiction
over a civil action in which the amount in controversy
exceeds $75, 000 and the action is between citizens of
different states. 28 U.S.C. § 1332 (2011). Where a party
to the action is a corporation, the corporation is deemed to
be a citizen of both the state where it is incorporated and
the state where it has its principal place of business.
Hertz Corp. v. Friend, 559 U.S. 77, 88 (2010).
“Defendants seeking removal bear the burden of
demonstrating that jurisdiction is proper.”
Bartnikowski v. NVR, Inc., 307 Fed.Appx. 730, 734
(4th Cir. 2009) (unpublished opinion). A defendant must prove
proper jurisdiction by a preponderance of the evidence.
Id. See also McCoy v. Erie Ins. Co., 147
F.Supp.2d 481, 489 (S.D.W.Va. 2001).
Calculation of Amount in Controversy
plaintiff does not specify a dollar amount in his prayer for
relief, the Court must determine the amount in controversy in
a given case. McCoy, 147 F.Supp.2d at 489. To do so,
the Court should use common sense to consider what the
plaintiff would recover if he was to prevail on the merits of
his case. Id. The Court should “look to the
entire record before it and make an independent evaluation as
to whether or not the jurisdictional amount is in
present Complaint, Plaintiff alleges that he has suffered
“mental anguish, worry and distress, loss of income and
substantial annoyance and inconvenience” (ECF No. 1-1).
Plaintiff does not, however, list a sum certain in his prayer
for relief (ECF No. 1-1). In its Notice of Removal, Defendant
informed the Court that, at the time Plaintiff was discharged
from his employment, he was earning approximately $102,
648.00 per year in income (ECF No. 1). Plaintiff alleges that
he was wrongfully discharged in June, 2015 and that he has
suffered over two years of lost wages as a result (ECF No.
1-1). Solely in calculation of alleged lost income, then, the
amount Plaintiff seeks in damages far exceeds $75, 000.
Accordingly, the jurisdictional requirements for the amount
in controversy are met. See Shumate v. DynCorp Intern.
LLC, 2012 WL 830241, at *5 (S.D.W.Va. Mar. 9, 2012)
(unpublished opinion) (finding that the amount in controversy
requirement was satisfied when the plaintiff claimed lost
wages of $135, 000 in addition to other relief).
Effect of Attempted Stipulation
attempts to refute Defendant's assertion of the amount in
controversy in this case by including in his Motion to
Remand: “The Plaintiff, Taeger Osburn hereby stipulates
that the amount in controversy is less than Seventy-Five
Thousand ($75, 000.00) Dollars” (ECF No. 7). It is
well-established law, however, that “plaintiffs cannot
avoid federal jurisdiction by later stipulating to an amount
of damages below the jurisdictional minimum.”
Asociacion Nacional de Pescadores a Pequena Escala O
Artesanales de Colombia v. Dow Quimica de Colombia S.A.,
988 F.2d 559, 564 (5th Cir. 1993) ...