United States District Court, S.D. West Virginia, Charleston
THE RAW BAR LLC, a West Virginia limited liability company, Plaintiff,
ADT LLC, a Delaware limited liability company, Defendant.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge.
are the motion to remand of the plaintiff, filed April 10,
2018, and the uncontested Motion for Leave to File a
Supplemental Response to Motion to Remand, filed October 25,
2018 by the defendant.
civil action, originally filed in the Circuit Court of
Kanawha County, West Virginia, concerns a fire that occurred
after operating hours at the plaintiff's place of
business. This happened after the defendant, ADT LLC
(“ADT”) had installed one of its security systems
on the premises. Compl. ¶ 5. The plaintiff, The Raw Bar
LLC (“The Raw Bar”), claims the alarm system
warned the defendant of the hazard, but that the defendant
“failed to properly respond and make necessary and
timely phone calls to the Plaintiff and/or representative,
the police or the fire department.” Id. ¶
6. The Raw Bar brings three separate counts to recover for
damages related to the incident, including negligence, breach
of contract, and breach of warranty. See Id. ¶
result of defendant's alleged failure to timely respond,
plaintiff alleges that its “business establishment
incurred severe damages, and the Plaintiff sustained lost
profits, personal property losses and other associated
damages.” Id. ¶ 7. The associated damages
sought include annoyance, inconvenience, and aggravation.
Id. ¶ 21(c).
removed based on diversity jurisdiction. 28 U.S.C. §
1332. In moving for remand, plaintiff argues that the amount
in controversy does not exceed the sum of $75, 000 as
required by the diversity statute. Specifically, The Raw Bar
notes that its complaint, signed by its attorney but not by
its representative, contains a stipulation that “the
amount of damages it sustained as a result of the
Defendant's wrongful conduct does not exceed $75,
000.” The court notes that the plaintiff's request
for attorney fees is couched in such a way that it may be
deemed to be a cost and expense in addition to
The Plaintiff requests it be awarded its costs and expenses
incurred in bringing this action, including reasonable
attorney fees, and such other relief as the Court deems just.
Amended Compl. 5.
Bar further contends that because its representative and
attorney signed a stipulation after removal, stating that the
plaintiff suffered damages totaling less than $75, 000, the
amount in controversy does not exceed the jurisdictional
threshold. To the extent that plaintiff attempts to rely upon
the stipulation signed by its representative and counsel, the
court notes that it was not submitted to the court until the
case was removed, and in doing so, the plaintiff has failed
to comply with McCoy v. Erie Ins. Co., 147 F.Supp.2d
481, 485-86 (S.D. W.Va. 2001) (holding that for a stipulation
to bear on a court's finding with respect to the amount
in controversy requirement, it must have been signed by
counsel and his or her client and submitted prior to
removal). The post-removal stipulation is thus ineffective.
Also ineffective is the stipulation in the complaint, signed
only by counsel.
defendant filed a supplemental response to the
plaintiff's motion to remand on October 25, 2018.
Therein, it references the plaintiff's responses to
ADT's Requests for Admission. In the first of those
responses the plaintiff states:
Either the Defendant accepts the Plaintiff's stipulation
of not seeking damages in excess of $75, 000.00 and return
the case to State Court or, if the case remains in Federal
Court, the amount of the award will be as awarded by the
See Response to First Req. for Adm. ¶ 1. The defendant
aptly contends that this assertion supports its position that
diversity jurisdiction is proper.
defendant removes, it bears the burden of showing that it has
properly invoked federal jurisdiction. “A defendant
that removes a case from state court in which the damages
sought are unspecified, asserting the existence of federal
diversity jurisdiction, must prove by a preponderance of the
evidence that the value of the matter in controversy exceeds
the jurisdictional amount . . . .” Landmark v.
Apogee Coal Co.,945 F.Supp. 932, 935 (S.D. W.Va. 1996).
The test is framed as a requirement that the defendant show
it is “more likely than not” that the
jurisdictional amount is met. Id. (citing
Tapscott v. MS Dealer Serv. Corp.,77 F.3d 1353,
1357 (11th Cir. 1996). Inasmuch as ADT asserts diversity