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Parsley v. Norfolk And Western Railway Co.

United States District Court, S.D. West Virginia, Huntington Division

February 9, 2018




         Now pending before the Court is Plaintiff's Motion to Remand. ECF No. 6. For reasons specified herein, Plaintiff's Motion to Remand is DENIED.

         I. Background

         Plaintiff filed the present Complaint in Wayne County, West Virginia on October 10, 2017. ECF No. 1. Defendant removed the case to this Court on November 15, 2017 based on diversity jurisdiction. ECF No. 1. Plaintiff filed a Motion to Remand on December 14, 2017, alleging that the amount in controversy in this case is less than $75, 000, thereby defeating diversity jurisdiction. ECF No. 6.

         II. Analysis

         A civil 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). “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 Bartnikowski v. NVR, Inc., 307 Fed.Appx. 730, 734 (4th Cir. 2009) (unpublished opinion).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).

         a. Calculation of Amount in Controversy

          Where a 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 issue.” Id.

         In the present Complaint, Plaintiff alleges that he has suffered losses as a result of Defendant's failure to maintain a railroad crossing including the loss of a structure on his property that Plaintiff alleges burned due to Defendant's failure to maintain the crossing. ECF No. 1-2. For relief, Plaintiff requests that Defendant replace the crossing, “forever maintain [the crossing], ” and provide Plaintiff with funds to rebuild the burned structure. Id.

         While Plaintiff did not name a sum certain in his Complaint, Defendant provided the Court with evidence as to the costs of Plaintiff's requested relief in its Notice of Removal. ECF No. 1. Defendant's Division Engineer for the Pocahontas Division, James Erickson, provided a sworn statement by affidavit, submitted with Defendant's Notice of Removal. ECF No. 1-4. Mr. Erickson is the Division Engineer responsible for the area that includes the track of land in question in this case. Id. According to Mr. Erickson, constructing the railroad crossing as Plaintiff requests would cost between $24, 000 and $26, 000; the crossing would need to be replaced every five years for a cost between $24, 000 and $26, 000 every five years; and routine maintenance would cost Defendant $300 per year. Id. As Defendant asserts in its notice of removal, Plaintiff's request for relief is that Defendant construct the crossing and maintain it into perpetuity. ECF No. 1, ECF No. 1-2.

         Plaintiff additionally requests that Defendant pay for the cost of rebuilding the structure lost in the fire. ECF No. 1-2. Defendant asserts, based on property valuation, that this payment would be approximately $9, 800. ECF No. 1. Taken as a whole, the costs of building and maintaining the crossing over time and the cost of rebuilding the burned structure equal a sum in excess of $75, 000.

         b. Effect of Attempted Stipulation

         Plaintiff attempts to refute Defendant's assertion of the amount in controversy in this case by including in his Motion to Remand: “The Plaintiff, Hershall Parsley hereby stipulates that the amount in controversy is less than Seventy-Five Thousand ($75, 000.00) Dollars.” ECF No. 6. 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) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 222 (5th Cir. 1998).

         In order to use a stipulation of the amount in controversy to successfully avoid federal jurisdiction in this District, a plaintiff must provide a “formal, truly binding, pre-removal stipulation signed by counsel and his client explicitly limiting recovery.” McCoy, 147 F.Supp.2d at 485. See also 14 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3702.4 (4th ed. 2017) (“[T]o be effective, . . . any [stipulation limiting damages sought] must be filed prior to removal.”). Some courts have held that the stipulation must also be filed contemporaneously with the complaint and must be signed and notarized. Kittredge v. Navy Fed. Credit Union, 2016 WL 47877, at *2 (N.D.W.Va. Jan. 4, ...

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