United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER, UNITED STATES DISTRICT JUDGE
Court has reviewed the Plaintiff's Motion to
Remand (Document 4), the Memorandum of Law in
Support of Plaintiff's Motion to Remand (Document
5), the Defendant's Response to Plaintiffs Motion to
Remand (Document 6), the Plaintiff's Reply in
Support of Plaintiff's Motion to Remand (Document
7), the Plaintiff's Response in Opposition to
Defendant Dolgencorp, LLC d/b/a Dollar General's Motion
to Dismiss Plaintiff's Complaint (Document 1-12), as
well as the Amended Complaint (Document 1-7) and
Notice of Removal (Document 1). For the reasons
stated herein, the Court finds that the motion should be
HISTORY AND FACTUAL BACKGROUND
Plaintiff, Kathy Lockhart, originally filed her complaint in
the Circuit Court of Greenbrier County, West Virginia. The
Plaintiff named Dolgencorp LLC, d/b/a Dollar General as the
Defendant. The Defendant removed the case to this Court on
September 14, 2018.
Plaintiff alleges that on or about October 27, 2016, she was
shopping at a Dollar General Store in Lewisburg, West
Virginia. The Plaintiff further alleges that the Defendant,
“negligently maintained the premises by placing a wire
basket at the end of an aisle which was unsafe and dangerous,
which caused [the] Plaintiff to trip, fall, and seriously
injure herself.” (Amended Compl. at ¶ 6). The
Plaintiff's amended complaint sets forth claims for
negligence and nuisance.
Plaintiff filed her motion to remand shortly after removal to
this Court, asserting that the Defendant's removal was
untimely. The Defendant has responded, and the motion is
fully briefed and ripe for review.
action may be removed from state court to federal court if it
is one over which the district court would have had original
jurisdiction. 28 U.S.C. § 1441(a). This Court has
original jurisdiction of all civil actions between citizens
of different states or between citizens of a state and
citizens or subjects of a foreign state where the amount in
controversy exceeds the sum or value of $75, 000, exclusive
of interests and costs. 28 U.S.C. § 1332(a)(1)-(2).
Generally, every defendant must be a citizen of a state
different from every plaintiff for complete diversity to
exist. Diversity of citizenship must be established at the
time of removal. Higgins v. E.I. Dupont de Nemours &
Co., 863 F.2d 1162, 1166 (4th Cir.1998).
It is a
long-settled principle that the party seeking to adjudicate a
matter in federal court, through removal, carries the burden
of alleging in its notice of removal and, if challenged,
demonstrating the court's jurisdiction over the matter.
Strawn et al. v. AT &T Mobility, LLC et
al., 530 F.3d 293, 296 (4th Cir. 2008); Mulcahey
v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir. 1994) (“The burden of establishing federal
jurisdiction is placed upon the party seeking
removal.”) (citation omitted). Accordingly, in this
case, the removing defendant has the burden to show the
existence of diversity jurisdiction by a preponderance of the
evidence. See White v. Chase Bank USA, NA., Civil
Action No. 2:08-1370, 2009 WL 2762060, at *1 (S.D. W.Va. Aug.
26, 2009) (Faber, J.) (citing McCoy v. Erie Insurance
Co., 147 F.Supp.2d 481, 488 (S.D. W.Va. 2001)). In
deciding whether to remand, because removal by its nature
infringes upon state sovereignty, this Court must
“resolve all doubts about the propriety of removal in
favor of retained state jurisdiction.” Hartley v.
CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).
Defendant asserted in its notice of removal that federal
diversity jurisdiction exists because there is complete
diversity of citizenship in this action, and the amount in
controversy is greater than $75, 000. (Notice of Removal at
¶ 18.) The Plaintiff does not contest diversity of
citizenship or the amount in controversy, but argues this
case was improperly removed to this Court, because it was
removed beyond the thirty-day window in which a case may be
properly removed to federal court. (Pl.'s Mem. In Supp.
at 4-6.) The Defendant responds and argues that it could not
in good faith represent to this Court that the amount in
controversy exceeded the jurisdictional amount until Dr.
Stephen Cohen was deposed on August 28, 2018, making removal
timely. (Def's. Resp. in Opp. at 4.)
Therefore, the question before the Court is whether the
Defendant's notice of removal is timely.
U.S.C § 1446 “provides two thirty-day windows
during which a case may be removed- during the first thirty
days after the defendant receives the initial pleading or
during the first thirty days after the defendant receives a
paper ‘from which it may first be ascertained that the
case is one which is or has become removeable.'”
Harris v. Bankers Life and Cas. Co., 435 F.3d 689,
692 (9th Cir. 2005) (quoting 28 U.S.C. § 1446
In determining whether the grounds for removal were
ascertainable from a motion, order or other paper, a court
must not inquire into the subjective knowledge of the
defendant . . . Instead, the court must ‘rely on the
face of the initial pleading and on the documents exchanged
in the case by the parties . . . [and] requir[e] that those
grounds be apparent within the four corners of the initial
pleading or subsequent paper.
Tolley v. Monsanto Co.,
591 F.Supp.2d 837, 845 (S.D.
W.Va. 2008) (Goodwin) (internal citations omitted).
“The ‘motion, order, or other paper'
requirement is broad enough to include any information
received by the defendant, ‘whether communicated in a
formal or informal manner.'” ...