United States District Court, N.D. West Virginia
TROY CHANZE, SR., on his own behalf and on behalf of all others similarly situated, Plaintiff,
AIR EVAC EMS, INC., a Missouri corporation, Defendant.
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO REMAND
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
case arises out of alleged breach of implied contract between
the plaintiff, Troy Chanze, Sr. (“Chanze”), and
defendant Air Evac EMS, Inc. (hereinafter, “Air
Evac”). The plaintiff originally filed his class action
complaint in the Circuit Court of Wetzel County, West
Virginia against the defendant. The plaintiff’s class
action complaint seeks money damages, restitution and
disgorgement, declaratory and injunctive relief, and
attorneys’ fees on behalf of the plaintiff Chanze
individually and on behalf of a purported class of
individuals who received Air Evac’s medical transport
services from a location in West Virginia to a healthcare
facility over the past five years. In the first cause of
action of the complaint, Chanze brings a
breach-of-implied-contract claim, asserting that the rate he
was charged for Air Evac’s air ambulance services is
unreasonable as a matter of West Virginia law. In the second
cause of action of the complaint, Chanze seeks declaratory
and injunctive relief to bar Air Evac from charging its usual
billed rates for air ambulance transportation services.
Air Evac removed the civil action to this Court on May 17,
2018. ECF No. 1. Defendant Air Evac filed a motion to dismiss
(ECF No. 5) on May 24, 2018 asserting that the class action
complaint is preempted in its entirety by the Airline
Deregulation Act of 1978, which preempts state-law claims
“having the force and effect of law related to a price,
route, or service of an air carrier.” 49 U.S.C. §
1, 2018, plaintiff filed a motion to remand (ECF No. 13) this
case to the Circuit Court of Wetzel County, West Virginia. On
the same date, plaintiff also filed a motion to stay briefing
(ECF No. 14) of Air Evac’s motion to dismiss until the
Court first addresses the jurisdictional issues raised in
plaintiff’s motion to remand. On June 6, 2018, this
Court granted the plaintiff’s motion to stay briefing
on the motion to dismiss. ECF No. 16.
motion to remand (ECF No. 13), filed pursuant to 28 U.S.C.
§ 1446 and 28 U.S.C. § 1332, asserts the defendant
cannot meet the following requirements under the Class Action
Fairness Act (“CAFA”): (1) that the class must
consist of 100 or more members; and (2) that the amount in
controversy must exceed $5,000,000.00. First, the plaintiff
argues that the defendant has merely asserted that the class
exceeds 100 members without offering any supporting evidence.
ECF No. 13 at 4 (citing Dart Cherokee Basin Operating
Co., LLC v. Owens, 135 S.Ct. 547, 553-54 (2014)). The
plaintiff contends that this is not enough to establish
jurisdiction, and states “[u]nless and until the
Defendant provides the Court with provable data demonstrating
that the class size does, in fact, exceed the 100-member
minimum, the Plaintiff is entitled to remand.” ECF No.
13 at 5. Further, the plaintiff argues that the defendant has
not established that the amount in controversy exceeds
$5,000,000.00 because the defendant merely speculates on an
amount based on the defendant’s estimate of the total
number of class members and has provided “no data at
all” to support its calculation of the amount in
controversy. ECF No. 13 at 5-6. Plaintiff argues that
“[w]ithout affidavits or supporting data confirming
what the impact of an injunction would actually be, however,
the Defendant cannot meet its federally imposed burden of
proof.” ECF No. 13 at 7-8.
filed a response to the plaintiff’s motion to remand
(ECF No. 17) and contends that it properly stated its grounds
for CAFA removal in its notice of removal attached the
declaration of Joshua Redfield (ECF No. 17-1) as
“evidence sufficient to establish, by a preponderance
of the evidence, the jurisdictional facts required by
CAFA.” ECF No. 17 at 1. Defendant adds that “the
Supreme Court requires no evidentiary submission at the
notice of removal stage.” ECF No. 17 at 1. The
defendant argues that it has already submitted proof of the
number of emergency transports during the class period, and
that this, combined with the plaintiff’s allegations,
establishes that the class exceeds 100 members. ECF No. 17 at
6. Further, the defendant argues it can establish that the
amount in controversy exceeds $5,000,000.00 exclusive of
interest or costs by multiplying the individual damage
amounts pled in the complaint by the number of persons in an
alleged class. ECF No. 17 at 7. Lastly, defendant contends
that “the value of Plaintiff’s claim for
injunctive relief here independently establishes an amount in
controversy exceeding $5 million.” ECF No. 17 at 9.
plaintiff did not file a reply to the defendant’s
response in opposition to the plaintiff’s motion to
plaintiff’s motion to remand is now ripe for decision.
For the following reasons, the plaintiff’s motion to
remand (ECF No. 13) 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.
The Class Action Fairness Act (“CAFA”) confers
original jurisdiction on district courts over class actions
in which (1) “the matter in controversy exceeds the sum
or value of $5,000,000, exclusive of interest and
costs,” 28 U.S.C. § 1332(d)(2); (2) “any
member of a class of plaintiffs is a citizen of a State
different from any defendant,” id. §
1332(d)(2)(A); and (3) “there are 100 or more plaintiff
class members,” id. § 1332(d)(5)(B).
West Virginia ex rel. McGraw v. CVS Pharm., Inc.,
646 F.3d 169, 174 (4th Cir. 2011). The claims of individual
class members may be aggregated to meet the $5,000,000.00
amount in controversy. 28 U.S.C. § 1332(d)(6).
burden of establishing the $5,000,000.00 jurisdictional
threshold amount in controversy rests with the defendants.
See Strawn v. AT&T Mobility LLC, 530 F.3d 293,
298 (4th Cir. 2008) (concluding that CAFA did not shift the
burden of persuasion, which remains upon the party seeking
removal). This Court has consistently applied the
“preponderance of evidence” standard to determine
whether a removing defendant has met its burden of proving
the amount in controversy. The well-settled test in the
United States Court of Appeals for the Fourth Circuit for
calculating the amount in controversy is “‘the
pecuniary result to either party which [a] judgment would
produce.’” Dixon v. Edwards, 290 F.3d
699, 710 (4th Cir. 2002) (quoting Gov’t Employees
Ins. Co. v. Lally, F.2d 568, 569 (4th Cir. 1964)).
in this case, the defendants must show by a preponderance of
the evidence that the pecuniary interest, in the aggregate,
of either party is greater than $5,000,000.00. Under the
statute, “one defendant may remove the entire action,
including claims against all defendants.” Lowery v.
Ala. Power Co., 483 F.3d 1184, 1196 (11th Cir. 2007).
jurisdiction is strictly construed. If federal jurisdiction
is doubtful, the federal court must remand. Mulcahey v.
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