United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, UNITED STATES DISTRICT JUDGE
AM-Rail Construction, Inc. (“AM-Rail”), initiated
this action in state court on or about April 11, 2016. On May
24, 2016, Defendant, A&K Railroad Materials, Inc.
(“A&K”), removed the action to this Court,
pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. (ECF
No. 1.) Before the Court are Defendant's Motion to
Transfer Venue, (ECF No. 9), filed on July 20, 2016, and
Plaintiff's Motion to Remand to State Court for lack of
subject matter jurisdiction, (ECF. No. 18), filed on August
15, 2016. For the reasons set forth below, the Court will
deny Plaintiff's motion to remand this case to state
court and will allow Defendant's motion to transfer venue
to the United States District Court of Utah.
MOTION TO REMAND
asserts in its Motion to Remand that, because the Court lacks
subject matter jurisdiction, this matter must be remanded to
state court. (ECF No. 17 at 5.) Subject matter jurisdiction
relates to the Court's power to hear this case.
Holloway v. Pagan River Dockside Seafood, Inc., 669
F.3d 448, 453 (4th Cir. 2012) (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006)). Thus, the Court must
address this issue before addressing other issues in the
case. Jones v. Am. Postal Workers Union, 192 F.3d
417, 422 (4th Cir. 1999). The burden of establishing subject
matter jurisdiction rests with the party seeking removal.
Hoschar v. Appalachian Power Co., 739 F.3d 163, 169
(4th Cir. 2014). Remand is required “[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction.” 28 U.S.C. §
defendant can remove a state court action to federal court if
it is one over which the district courts of the United States
have original jurisdiction. Id. § 1441(a).
Defendant removed this case based on diversity of
citizenship. (ECF No. 1 at ¶ 8.) Diversity jurisdiction
exists where the amount in controversy exceeds $75, 000 and
the parties are completely diverse, meaning no plaintiff is a
citizen of the same state as any defendant. 28 U.S.C. §
1332(a); Johnson v. Am. Towers, LLC., 781 F.3d 693,
704 (4th Cir. 2015). It is undisputed that the parties in
this case are citizens of different states. The sole issue
here is whether the amount in controversy has been satisfied.
In determining the amount in controversy, courts generally
look to whether the complaint on its face specifies an amount
in damages. Dash v. FirstPlus Home Loan Tr. 1996-2,
248 F.Supp.2d 489, 497 (M.D. N.C. 2003). The amount claimed
in the complaint controls, unless it appears to a legal
certainty, from the face of the complaint, that the claim is
really for less than the jurisdictional amount. St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89
as alleged here, an action is based on diversity of
citizenship and was not initially filed in federal court, the
court may exercise jurisdiction only if the case is properly
removed to federal court. See §§ 1441,
1446. A notice of removal is proper when the grounds for
removal are “apparent within the four corners of the
initial pleading or subsequent paper.” Lovern v.
Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997).
Subsequent paper, or other paper as
referenced in the removal statute, § 1446(b)(3),
encompasses formal or informal communication, including
written settlement and demand letters. See Yarnevic v.
Brink's, Inc., 102 F.3d 753, 755 (4th Cir. 1996);
Rodgers v. Nw. Mut. Life. Ins. Co., 952 F.Supp. 325,
327-28 (W.D. Va. 1997) (“finding that the
plaintiff's offer of settlement constitute[d] an
‘other paper' within the meaning of §
removal is challenged based on the amount in controversy,
Defendant, as the party invoking the Court's
jurisdiction, bears the burden of proving that the amount in
controversy exceeds the $75, 000 jurisdictional threshold.
See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994) (“The burden of establishing
federal jurisdiction is placed upon the party seeking
removal.”); Talantis v. Paugh Surgical, Inc.,
273 F.Supp.2d 710, 712-13 (M.D. N.C. 2003) (explaining that
“in removal cases it is the defendant's burden to
prove that the case satisfies all of the jurisdictional
requirements for removal”). Defendant must carry its
burden by a preponderance of the evidence. See Roche v.
Lincoln Prop., 373 F.3d 610, 616 (4th Cir. 2004),
rev'd on other grounds, 546 U.S. 81 (2005);
Lee v. Citimortgage, Inc., 739 F.Supp.2d 940, 945
(E.D. Va. 2010). “Mere allegations in the notice of
removal are insufficient.” Lee, 739 F.Supp.2d
at 945 (quoting LJT & Assocs., Inc. v. Koochagian,
No. WDQ-09-2405, 2009 WL 4884525, at *3 (D. Md. Dec. 10,
2009)). Also insufficient is the parties' subjective
assessment of the amount in controversy. See Lovern,
121 F.3d at 162. “Competent proof” is required,
and such proof may include any evidence in the record.
Lee, 739 F.Supp. at 945.
of the significant federalism concerns inherent in removal,
the removal statute must be strictly construed. Rizwan v.
FCI Lender Servs. Inc., 176 F.Supp.3d 513, 515 (D. Md.
2016); see Barbour v. Int'l Union, 640 F.3d 599,
615 (4th Cir. 2011) (en banc), abrogated on other grounds
by 28 U.S.C. § 1446(b)(2)(B). All doubts must be
resolved in favor of granting the plaintiff's motion to
remand. Rizwan, 176 F.Supp.3d at 515.
Plaintiff argues that “[i]n strictly construing
Defendant's motion to remove, Defendant has not
established [that] the jurisdictional amount has been
satisfied by a preponderance of the evidence. Thus, this
Court should remand the case to the Superior Court of
Cabarrus County because federal jurisdiction is
doubtful.” (ECF No. 17 at 7.) This Court disagrees.
in its Notice of Removal, relies principally upon
Plaintiff's Complaint to support its contention that the
amount in controversy exceeds the $75, 000 threshold
necessary to invoke this Court's subject matter
jurisdiction. The notice provides, in pertinent part, the
4. The amount in controversy exceeds $75, 000.00, exclusive
of interest and costs. In the Complaint, Plaintiff seeks an
award “in excess of twenty-five thousand dollars”
in compensatory damages, as well as punitive damages or
treble damages for Defendant's alleged fraud and alleged
violation of the North Carolina Unfair and Deceptive Trade
Practices Act . . . . See Compl. ¶¶ 58,
5. While North Carolina law does not require a plaintiff to
plead damages with specificity in the complaint, . . .
Plaintiffs have demanded payment from A&K in the principal
amount of $67, 502.31. See Letter dated October 20,
2015 attached hereto as Exhibit D.
6. . . . Plaintiff's stated compensatory damages in
excess of $25, 000, when taken together with treble damages
claimed under N.C. Gen. Stat. § 75-16.1, or claimed
punitive damages . . . bring the amount in ...