United States District Court, N.D. West Virginia
JERSEY SUBS, INC. and DANA PAPANICOLAS, Plaintiffs,
SODEXO AMERICA, LLC and LARA BEALKO, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION FOR REMAND [DKT. NO. 10]
S. KLEEH UNITED STATES DISTRICT JUDGE
about September 13, 2018, Jersey Subs, Inc. and Dana
Papanicolas ("Plaintiffs") filed a Complaint in the
Circuit Court of Monongalia County, West Virginia, against
Sodexo America, LLC and Lara Bealko ("Defendants").
Defendants filed a Petition for Removal on October 9, 2018,
arguing that diversity jurisdiction exists (Dkt. No. 1). On
October 30, 2018, Plaintiffs filed a Motion for Remand (Dkt.
No. 10) and Memorandum in Support (Dkt. No. 11) . On November
13, 2018, Defendants filed a response to Plaintiffs'
motion (Dkt. No. 18). The Court now DENIES Plaintiffs'
Motion for Remand (Dkt. No. 10) .
Complaint stems from the operation of a concession stand
subcontracted through Defendants at Milan Puskar Stadium on
the campus of West Virginia University. After Plaintiffs used
a specific stadium location from 2002 to 2016, Defendants
provided them with a new location for the 2017 football
season. Plaintiffs claim they were damaged when Defendants
supplied them with inadequate equipment/signage, placed
Plaintiffs' stand next to a competing stand, and, in the
presence of a third party, accused Plaintiffs of assisting
the theft of Defendants' property. The Complaint alleges
the following: (1) Tortious Interference with Contract, and
(2) Defamation of Character: Slander Per Se (Dkt. No. 1-1) .
Plaintiffs request compensatory and punitive damages but do
not cite a specific amount of damages in their Complaint.
their Petition for Removal, Defendants allege diversity
jurisdiction exists because (1) the parties are diverse, and
(2) the relief requested by Plaintiffs, if awarded, would be
greater than the minimum requirement of $75, 000 (Dkt. No. 1)
. In Plaintiffs' Motion for Remand, they argue that
Defendants cannot establish that the $75, 000 threshold is
met (Dkt. No, 11). Plaintiffs do not dispute that complete
diversity among the parties is present. In Defendants'
response, they reiterate their position that relief, if
awarded, would be greater than $75, 000. They note that
Plaintiffs sent a $20, 000 demand letter for reputational
damages while also demanding punitive damages (which may be
awarded in amounts up to $500, 000 or four (4) times the
amount of actual damages, whichever is greater} (Dkt. No.
action is removed from state court, a federal district court
must determine whether it has original jurisdiction over the
plaintiff's claims. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). "Federal
courts are courts of limited jurisdiction. They possess only
that power authorized by the Constitution and statute, which
is not to be expanded by judicial decree." Id.
statutes are strictly construed against the party seeking
removal, and the burden of establishing jurisdiction rests on
that party." Ryan Envtl., Inc. v. Hess Oil Co.,
718 F.Supp.2d 719, 722 (N.D. W.Va. 2010) (citation omitted).
"Because removal jurisdiction raises significant
federalism concerns, [courts] must strictly construe removal
jurisdiction." Mulcahey v. Columbia Organic
Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100
(1941)). If federal jurisdiction is doubtful, remand is
appropriate. In re Business Men's Assur. Co. of
America, 992 F.2d 181, 183 (8th Cir.1993); Cheshire
v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp.
1098, 1102 (D.S.C.1990). "Nonetheless, removal should be
'fair to both plaintiffs and defendants alike'
because the right of removal is 'at least as important as
the plaintiff's right to the forum of his choice.'
McKinney v. Bd. of Trs. of Mayland Cmty. Coll., 955
F.2d 924, 927 (4th Cir.1992)." Carter v. Hitachi
Koki U.S.A., Ltd., 445 F.Supp.2d 597, 600 (E.D. Va.
courts have original jurisdiction over two types of cases:
those involving federal questions under 28 U.S.C. § 1331
and those involving diversity of citizenship under 28 U.S.C.
§ 1332. When a party seeks to remove a case based on
diversity of citizenship under 28 U.S.C. § 1332, that
party bears the burden of establishing that "the amount
in controversy exceeds the sum or value of $75, 000,
exclusive of interests and costs, and is between citizens of
different states." 28 U.S.C. § 1332 .
§ 1332 requires complete diversity among parties, which
means that the citizenship of all defendants must be
different from the citizenship of all plaintiffs. See
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) .
For purposes of diversity of citizenship jurisdiction under
28 U.S.C. § 1332, "an unincorporated association
shall be deemed to be a citizen of the State where it has its
principal place of business and the State under whose laws it
is organized." 28 U.S.C. § 1332(d) (10) .
complaint does not contain a specific amount in controversy
and the defendant files a notice of removal, "the
defendant bears the burden of proving that the claim meets
the requisite jurisdictional amount," and "the
Court may consider the entire record" to determine
whether that burden was met. Elliott v. Tractor Supply
Co., No. 5:14CV88, 2014 WL 4187691, at *2 (S.D. W.Va.
Aug. 21, 2014) (citing Mullins v. Harry's Mobile
Homes, Inc., 861 F.Supp. 22, 23 (S.D. W.Va. 1994)). If
the defendant sufficiently proves by a preponderance of the
evidence that the amount in controversy exceeds $75, 000 and
the parties are diverse, then removal is proper. Dart
Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct.
547, 553 (2014).
order to be operative, a disclaimer of recovery must be
"a formal, truly binding, pre-removal stipulation signed
by counsel and his client explicitly limiting recovery."
McCoy v. Erie Ins. Co., 147 F.Supp.2d 481, 485 (S.D.
W.Va. 2001) (emphasis added); see also Virden v. Altria
Group, Inc., 304 F.Supp.2d 832, 947 (N.D. W.Va. 2004)
("Therefore, absent a binding stipulation signed by [the
plaintiff] that he will neither seek nor accept damages in
excess of $75, 000, the Court must independently assess
whether the defendants proven by a preponderance of the
evidence that [the plaintiff's] complaint seeks damages
in excess of $75, 000.") .
on the applicable standards and the record before the Court,
it is clear that Defendants have met their burden to prove
that diversity jurisdiction exists. As discussed below, all
plaintiffs are diverse from all ...