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Chanze v. Air Evac EMS, Inc.

United States District Court, N.D. West Virginia

July 23, 2018

TROY CHANZE, SR., on his own behalf and on behalf of all others similarly situated, Plaintiff,
AIR EVAC EMS, INC., a Missouri corporation, Defendant.



         This 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.

         I. Background

         Defendant 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. § 41713(b)(1).

         On June 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.

         Plaintiff’s 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.

         Defendant 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.

         The plaintiff did not file a reply to the defendant’s response in opposition to the plaintiff’s motion to remand.

         The 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.

         II. Applicable Law

         A 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).

         The 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)).

         Accordingly, 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).

         Removal jurisdiction is strictly construed. If federal jurisdiction is doubtful, the federal court must remand. Mulcahey v. Columbia Organic ...

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