United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
pending before the Court is Plaintiff's Motion to Remand.
ECF No. 6. For reasons specified herein, Plaintiff's
Motion to Remand is DENIED.
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.
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(4th Cir. 2009) (unpublished opinion).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).
Calculation of Amount in Controversy
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.
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.
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.
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.
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, 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).
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, ...