United States District Court, W.D. Virginia, Lynchburg Division
Betty W. Willoughby, Plaintiff,
Kroger, ET AL., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE.
case is before the Court on a motion to remand. Plaintiff
Betty Willoughby filed suit against Defendants Kroger and
related entities (collectively referred to as
“Defendant”) in the Circuit Court for the City of
Lynchburg. (Dkt. 1-2). The complaint's ad damnum
clause alleges damages of $74, 900 for personal injuries
sustained when Plaintiff slipped and fell on Defendant's
premises. Upon conducting discovery, Defendant learned
through interrogatories that Plaintiff alleged $32, 132.06 in
special damages, as well as other future damages. Alleging
this new information supported diversity jurisdiction,
Defendant filed a notice of removal. (Dkt. 1-1). Plaintiff
now moves to remand the case, contending that the amount pled
in the ad damnum clause controls. Because I find
Defendant has not proved bad faith, I will remand the case.
defendant can remove a civil action to federal court if the
court would have had original jurisdiction over the matter.
28 U.S.C. § 1441(a). Federal courts possess original
subject matter jurisdiction when (1) the amount in
controversy exceeds $75, 000, exclusive of interest and
costs, and (2) the parties' citizenship is completely
diverse. 28 U.S.C. § 1332. Regarding the amount in
controversy, “unless the law gives a different rule,
the sum claimed by the plaintiff controls if the claim is
apparently made in good faith.” St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 288
(1938); 28 U.S.C. § 1446 (c)(2).
plaintiff seeks to remand a case removed to federal court,
the defendant has “the burden of demonstrating the
existence of federal jurisdiction.” Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th
Cir. 2008). “If, by a preponderance of the evidence,
the defendants prove that the totality of circumstances
indicates that the plaintiff is seeking to recover more than
$75, 000, the court should deny the plaintiff's motion to
remand.” Ford-Fisher v. Stone, No. CIV A
206CV575, 2007 WL 190153, at *3 (E.D. Va. Jan. 22, 2007)
(citing Schwenk v. Cobra Mfg. Co., 322 F.Supp.2d
676, 678 (E.D. Va. 2004)). “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, a remand is necessary.”
Id. (citing In re Business Men's Assur. Co.
of America, 992 F.2d 181, 183 (8th Cir. 1993)).
argues in her motion to remand that her answers to
Defendant's interrogatories did not provide a sufficient
basis to disregard the amount pled in her complaint.
Notwithstanding Plaintiff's argument, Defendant counters
that the Court should invoke a “totality of the
circumstances” analysis and find Plaintiff's
damages exceed $75, 000.
Plaintiff's Ad Damnum Clause Prevents the Case
from Exceeding the Amount in Controversy Threshold for
Virginia, the ad damnum clause in a plaintiff's
complaint caps the amount of his or her potential recovery.
Brown v. Wal-Mart Stores, Inc., No. 5:13CV00081,
2014 WL 60044, n.2 (W.D. Va. Jan. 7, 2014) (quoting Kent
Sinclair & Leigh B. Middleditch, Jr., Virginia Civil
Procedure § 3.2(H) (5th ed. 2008)); Hamilton v.
Bruce, 552 F.Supp. 649, 650-51 (W.D. Va. 1982). Such a
cap on recovery can prevent a case from satisfying the amount
in controversy requirement and thwart removal. Id.
at *3. Defendant contends that Plaintiff's answers to
interrogatories conflict with Plaintiff's original ad
damnum clause enumerating damages of $74,
(Dkt. 1-2, 1-3; dkt. 8 at 2). Specifically, Defendant reasons
that the $32, 132.06 listed as special damages, when
multiplied by two and a half times, exceeds $75, 000.
ad damnum clause made in good faith is sufficient to
prevent removal when it caps plaintiff's potential
recovery below the requisite amount in controversy for
diversity jurisdiction. Brown, 2014 WL 60044, at *2.
In Brown, the defendant removed a case filed in
state court with a complaint containing a $70, 000 ad
damnum clause. Id. at *3. During initial
settlement discussions, the plaintiff articulated itemized
medical expenses of $62, 386.77 and demanded $200, 000 to
settle the suit. Id. at *2. The defendant argued
that the amount pled in the ad damnum clause was
done in “bad faith” in order to avoid removal.
Id. at *3. Countering defendant's contention,
the plaintiff's counsel and paralegal testified at an
evidentiary hearing that the “they did not value
[plaintiff's] case over $50, 000, ” and indeed had
later attempted to settle the case for $45, 000. Id.
The court found the testimony to be evidence that
plaintiff's ad damnum clause “was not done
in bad faith.” Id. Moreover, the court found
assurances from plaintiff's counsel, that “he
[would] not amend his state court complaint to raise the ad
damnum . . ., ” made remand appropriate. Id.
wrongly posits that Brown stands for the proposition
that it is “the burden of the plaintiff to establish
that the sum demanded in the initial pleading was made in
‘good faith.'” (Dkt. 8 at 2). Plaintiff
rightly counters with the longstanding rule that the burden
of establishing jurisdiction post-removal rests upon
Defendant. (Dkt. 10 at 2). See Carson v. Dunham, 121
U.S. 421, 425 (1887) (“As [defendant] was the actor in
the removal proceeding, it rested on her to make out the
jurisdiction of the [court].”). Defendant's burden
notwithstanding, Plaintiff has still provided evidence that
the amount alleged in the ad damnum clause was done
in good faith.
it was stated at the November 13, 2017 remand hearing that
Plaintiff made a settlement offer of $150, 000, Plaintiff
states she currently “has no plan to amend the
Complaint to seek a sum greater than [$74, 900.00].”
(Dkt. 10 at 3). Moreover, Plaintiff's counsel stated
before the Court and in his brief that Plaintiff “has
determined, with the assistance of counsel, that the $42,
767.94 she is seeking that is in excess of her special[
damages] of $32.132.06 is an amount sufficient to compensate
her for her injuries, pain, potential future medical
expenses, or other damages.” Id. Plaintiff
further stipulated at the hearing that, under the facts she
is currently aware of, she will not amend her state court
complaint to seek damages above the amount in controversy
threshold. These statements, like the assurances in
Brown, are demonstrative that the ad damnum
clause was made in good faith. See also Animal Care Ctr.
of Salem, Inc. v. Thompson, No. 7:06CV00250, 2006 WL
1288516, at *1 (W.D. Va. May 10, 2006) (finding an ad
damnum clause amount of “less than $75, 000”
was made in good faith).
The “Totality of the Circumstances” Does Not
Warrant a Finding of Jurisdiction
Plaintiff's ad damnum clause, Defendant argues
that the “totality of the circumstances”
indicates the value of Plaintiff's claim is over $75,
000. (Dkt. 8 at 2-3 (citing Lien v. H.E.R.C. Prod.,
Inc., 8 F.Supp.2d 531, 534 (E.D. Va. 1998);
Ford-Fisher v. Stone, No. CIV A 206CV575, 2007 WL
190153, at *1 (E.D. Va. Jan. 22, 2007)). In Lien,
the district court found “the wording of the Complaint
[indicating potentially $100, 000 in damages], the
plaintiff's settlement letter [requesting $80, 000] and
the plaintiff's statements to [the] Court, contradict[ed]
the plaintiff's assertion that the value of [the]
litigation [was] less than $75, 000.00.” Lien,
8 F.Supp.2d at 534. In Ford-Fisher, the district
court found that in spite of a $25, 000 ad damnum
clause, the plaintiff's pursuit of a $300, 000 settlement
offer, her counsel's admission “that the plaintiff
was prepared to file an amended motion for judgment with an
increased ad damnum ...