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The Estate of Fraire v. Transam Trucking, Inc.

United States District Court, N.D. West Virginia

February 15, 2019

THE ESTATE OF LINDA FAY FRAIRE, deceased and TERESA ANDERSON, as next friend and on behalf of THE ESTATE OF LINDA FAY FRAIRE, deceased, Plaintiffs,
v.
TRANSAM TRUCKING, INC., a Kansas corporation and JOHN DOE and/or JANE DOE, driver, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         This civil action arises out of an accident that occurred in the parking lot of the TA Wheeling Travel Center in Wheeling, Ohio County, West Virginia, when a tractor trailer owned by defendant struck plaintiff's vehicle. ECF No. 1-1 at 4. Plaintiff, The Estate of Linda Fay Fraire, deceased, and Teresa Anderson, as next friend and on behalf of The Estate of Linda Fay Fraire (hereinafter “plaintiff”), originally filed a complaint in the Circuit Court of Ohio County, West Virginia against defendant TransAm Trucking, Inc., (“TransAm”) and a John Doe/Jane Doe driver.

         Defendant TransAm removed this action to this Court on October 23, 2018 pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF No. 1. The plaintiff then filed a motion to remand, which is ripe for decision. ECF No. 6. For the following reasons, the plaintiff's motion to remand is denied.

         I. Background

         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 based on lost wages and other damages in the form of medical bills. Further, defendant asserts that the notice of removal is timely because it is filed within one year after commencement of the action pursuant to 28 U.S.C. § 1446(c)(1) and within 30 days of receiving an “other paper” for purposes of determining whether the amount in controversy has been met and whether a case has become removable pursuant to 28 U.S.C. § 1446(c). ECF No. 1 at 2.

         After removal to this Court, the plaintiff filed a motion to remand arguing that the defendant's notice of removal is untimely and void of any actual calculations supporting the amount in controversy allegation. ECF No. 6. Plaintiff contends that defendant has had notice of this case by having had service of the complaint through the West Virginia Secretary of State's office on April 19, 2018. Id. at 1. Plaintiff states that on October 23, 2018, the defendant untimely and improvidently removed this matter to federal court on the basis of a single speculatory document and, on the basis of this sole document, untimely asserted diversity jurisdiction. Id. Plaintiff also contends that defendant has failed to satisfy its burden of proving that the amount in controversy exceeds $75, 000.00, and has failed to establish federal jurisdiction. ECF No. 7 at 11. Plaintiff contends that the removal fails for two primary reasons: first, because the removal occurred six months after the defendant received notice of this case, and second, because the “other paper” that defendant relies upon to support jurisdiction comes nowhere near satisfying defendant's burden to establish jurisdiction. Plaintiff asserts that both the delay and the lack of factual basis in satisfying the amount in controversy requirement of $75, 000.00, exclusive of interests and costs, support that this case should be remanded to state court where it was litigated for six months. Id. at 2.

         Defendant TransAm filed a response in opposition to the plaintiff's motion to remand. ECF No. 9. In response, defendant states that instead of removing this matter prematurely, defendant waited until the amount in controversy presented was shown to exceed $75, 000.00, exclusive of interests and costs, and then filed the removal documents within 30 days. Id. at 2-3. Defendant contends that based on plaintiff's answers and responses to certain discovery requests detailed in the notice of removal, the plaintiff provided a total of $56, 037.32 in medical bills, which she claims were incurred as a result of the incident. Id. at 3. After efforts to obtain more complete discovery, plaintiff provided a facsimile to defendant to address the deficiencies in her original responses titled “Historical Income Loss for Linda Fraire, ” which detailed $67, 727.22 in alleged lost wages. Id. Adding only the medical bills and this loss income calculation, defendant argues that plaintiff has now identified a total of $126, 764.54 in potential calculable economic damages, with non-specified pain and suffering claimed on top of these amounts. Id. Defendant contends that once the lost income document was received, it was clear, by a preponderance of the evidence, that the amount in controversy exceeded $75, 000.00, exclusive of interests and costs. Id.

         No reply was filed.

         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. 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 interests 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 Enforcement Tech. Commercialization, Inc., 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 Security 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.

         Further, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey v. Alabama 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., 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 plaintiff prevailed on the merits of his case as it stands at the time of removal.”) (internal citations omitted).

         III. Discussion

         There is no dispute that complete diversity exists. The only issues are whether the defendant's notice of removal was timely and whether the amount in controversy requirement is satisfied.

         First, plaintiff argues that the defendant's notice of removal is untimely because removal occurred six months after the defendant received notice of this case. However, defendant argues that based on plaintiff's answers and responses to certain discovery requests detailed in the notice of removal, plaintiff provided a total of $56, 037.32 in medical bills, which she claims were incurred as a result of the incident. Defendant asserts that the plaintiff's facsimile of a document on October 5, 2018, titled “Historical Income Loss for Linda Fraire, ” which detailed $67, 727.22 in alleged lost wages, was ...


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