United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
plaintiff, Lawrence Bradley Cecil, originally filed his
complaint in the Circuit Court of Marshall County, West
Virginia, against the defendant, Axiall Corporation. The
plaintiff alleges in his complaint that a rail tanker located
inside the defendant's Natrium plant in Marshall County,
West Virginia, leaked a substantial amount of liquid
chlorine. The plaintiff further alleges that, as a result of
the liquid chlorine leak, a large chemical cloud was created
that caused the toxic substance to travel from the Natrium
plant to the surrounding communities, including the
plaintiff's property. The plaintiff then alleges that he
was forced to evacuate his home and leave the area to avoid
exposure to the toxic chemical, and that the chemical
exposure damaged his real and personal property and injured
him personally. The complaint makes claims for (1)
negligence, (2) trespass, (3) private nuisance, (4) public
nuisance, (5) strict liability, and (6) res ipsa loquitur.
The plaintiff seeks compensatory damages, general damages,
punitive damages, pre-judgment and post-judgment interest,
and attorneys' fees and costs.
defendant removed the civil action to this Court. In the
notice of removal, the defendant 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. The defendant states that there is
complete diversity because the plaintiff is a resident of
West Virginia and the defendant is a Delaware corporation
with its principal office in Texas. The defendant states that
the amount in controversy exceeds $75, 000.00 based on the
plaintiff's allegations as pled in the complaint.
plaintiff then filed a motion to remand, in which he argues
that the defendant has failed to satisfy its burden of
proving that the amount in controversy exceeds $75, 000.00,
exclusive of interests and costs. The plaintiff points out
that the complaint does not include any specific monetary
demand, but rather generally lists the types of damages to
which he might be entitled. The plaintiff contends that the
defendant has not met its burden of proving that grounds
exist for asserting federal jurisdiction because it has
“made no effort to quantify the Plaintiff's
claims.” ECF No. 6 at 3. The plaintiff further contends
that “merely reciting the damage allegations in the
Complaint is not proof of value. It is merely
speculation.” Id. (emphasis in original).
defendant filed a response in opposition to the
plaintiff's motion to remand. In response, the defendant
points out that the complaint alleges that the plaintiff has
suffered “‘serious and permanent
injuries, ' damages for real and personal property,
annoyance, inconvenience, emotional and mental anguish,
stress, anxiety, a diminishment in his ability to enjoy life,
‘substantial' costs, expenses and
attorneys' fees, and punitive damages.” ECF No. 7
at 4 (emphasis in original). The defendant states that the
“[p]laintiff cleverly sought to avoid removal by
omitting any reference in the Complaint to the monetary value
of these claims.” Id. The defendant also notes
that the plaintiff did not accept its offer of a stipulation
that the amount sought was under $75, 000.00 in return for
the defendant's agreement not to oppose the motion to
plaintiff filed a reply to the defendant's response in
opposition. In reply, the plaintiff argues that the defendant
has not come forward with any facts to meet its evidentiary
burden of proving that federal jurisdiction is proper.
Rather, the plaintiff contends that the defendant has only
speculated as to the amount in controversy by using words
such as “extensive, ” “serious, ” and
“numerous.” The plaintiff also addresses the
email exchange attached to the defendant's response. The
plaintiff clarifies that, while he refused to sign the
proposed stipulation, he did offer to enter into settlement
negotiations for amounts less than $75, 000.00. Lastly, the
plaintiff argues that the mere presence of his claim for
punitive damages does not give rise to federal jurisdiction.
reasons set forth below, the plaintiff's motion to remand
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)).
is no dispute that complete diversity exists. The only issue
in dispute is the amount in controversy requirement under 28
U.S.C. § 1441. Based on the record before this Court,
the plaintiff's motion to remand must be granted. The
defendant fails to demonstrate that the amount in controversy
requirement has been satisfied. The plaintiff's complaint
does not include any specific monetary demand, but rather
generally lists the types of damages to which the plaintiff
might be entitled. The defendant's notice of removal
simply recites the categories of damages the plaintiff
alleges in his complaint and summarily concludes that the
amount in controversy exceeds $75, 000.00 “based on the
Plaintiff's allegations as pleaded in the
Complaint.” ECF No. 1 at 3. Additionally, this Court
finds that neither the plaintiff's general claim for
punitive damages nor the plaintiff's offer to enter into
settlement negotiations for “amounts less than $75,
000” (ECF No. 7-2 at 1) demonstrates that the amount in
controversy requirement has been satisfied.
stated earlier, the amount in controversy requirement cannot
be based on speculation or “what ifs” that may
occur. Rather, the court is limited to a consideration of
facts on the record at the time of removal. See
Lowrey, 483 F.3d at 1213-15. At this time in the civil
action, the amount of damages that may or will be recovered
is completely unknown and speculative at best. Speculation
regarding the amount in controversy requirement fails to
satisfy the burden that the removing party bears. See In
re Blackwater Sec. Consulting, LLC, 460 F.3d at 583.
Therefore, removal is improper. Also, as stated earlier,
removal jurisdiction is strictly ...