United States District Court, N.D. West Virginia
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,
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
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.
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.
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.
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.
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.
reply was filed.
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.
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).
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
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 ...