United States District Court, M.D. North Carolina
D. SCHROEDER, CHIEF DISTRICT JUDGE.
the court is the motion of Plaintiff Gloria Palacios to
remand this action to the Superior Court of Lee County, North
Carolina (Doc. 11). The motion is fully briefed and ready for
decision. For the reasons set forth below, the motion will be
a citizen and resident of Lee County, North Carolina, filed
this action in the Superior Court of Lee County, North
Carolina, on June 17, 2019. (Doc. 5.) The complaint alleges
that her employer, Defendant Tyson Foods, Inc.
(“Tyson”), a Delaware corporation with its
principal place of business in Springdale, Arkansas, fired
her on May 9, 2018, after she was injured on the job and
necessitated significant medical treatment. (Id.)
Palacios asserts claims for violation of the North Carolina
Retaliatory Employment Discrimination Act, N.C. Gen. Stat.
§ 95- 240 et seq.; and wrongful discharge in violation
of public policy as exists at common law. She seeks back pay,
compensatory and punitive damages, and attorneys' fees
pursuant to N.C. Gen. Stat. § 95-243.
removed this action on July 24, 2019, asserting this
court's exercise of diversity jurisdiction. (Doc. 1.)
Palacios filed a motion to remand, contending that Tyson has
failed to adduce any demonstration that the controversy
exceeds the jurisdictional threshold of $75, 000. (Doc.
Palacios seeks an award of costs, including reasonable
attorneys' fees pursuant to 28 U.S.C. § 1447(c).
Tyson has responded in opposition and has provided a
declaration of David Sutton, Human Resources Manager for
Tyson Mexican Original, Inc., setting out Palacios's
earnings. (Docs. 13, 13-1.) Palacios did not file a reply.
courts exercise limited jurisdiction, as prescribed by
Congress and the Constitution. Bowles v. Russell,
551 U.S. 205, 212 (2007); Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). Tyson invokes
this court's diversity jurisdiction. Pursuant to Title
28, United States Code, section 1332(a), federal courts may
adjudicate civil lawsuits where the matter in controversy
exceeds $75, 000 and is between citizens of different states.
also permits cases filed in state courts to be removed to
federal courts when diversity jurisdiction exists. 28 U.S.C.
§ 1441(a). For removal based on diversity grounds to be
proper, complete diversity must have existed at the time of
the filing of the state court complaint and at the time of
removal. Rowland v. Patterson, 882 F.2d 97, 99 (4th
Cir. 1989) (en banc). Because actions that are removed from
state courts to federal courts “raise significant
federalism concerns, ” removal jurisdiction is
“strictly construe[d].” Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
Ultimately, the burden of demonstrating subject matter
jurisdiction is on the party seeking to litigate in federal
court. Robb Evans & Assocs., LLC v. Holibaugh,
609 F.3d 359, 362 (4th Cir. 2010), cert. denied, 562 U.S.
1137 (2011). If the basis for federal jurisdiction “is
doubtful, a remand [to state court] is necessary.”
Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th
Cir. 2004) (en banc) (alteration in original) (citation and
internal quotation marks omitted).
Palacios does not dispute that the parties are diverse.
Rather, she contends that the complaint fails to establish
the requisite amount in controversy and that Tyson's
removal petition, which she concedes “need include only
a plausible allegation that the amount in controversy exceeds
the jurisdictional threshold, ” Dart Cherokee Basin Op.
Co. v. Owens, 574 U.S. 81, 89 (2014), only noted the
possible existence of treble and punitive damages, which she
argues did not meet its burden. (Doc. 11 at 4-5.) Tyson has
responded with a calculation of damages, noting that
Palacios's rate of pay would result in a plausible back
pay award at the time the complaint was filed of $29, 848.00,
which is subject to trebling under N.C. Gen. Stat. §
95-243, for a total claim of $89, 544.00. (Doc. 13 at 4-5.)
Tyson also notes the presence of a claim for punitive damages
and attorneys' fees. (Id. at 5-6.)
apply the “legal certainty” test in determining
whether the amount in controversy requirement is met. St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289 (1938). “[T]he court should look to the face
of the complaint itself to determine whether it is a legal
certainty that plaintiff's claims do not reach the
required amount.” Shanaghan v. Cahill, 58 F.3d
106, 112 (4th Cir. 1995). Where the complaint is ambiguous as
to the amount in controversy, the court may consider evidence
on the question, including “evidence . . . submitted by
the parties, the applicability of attorney's fees, and
potential punitive or trebling of damages.” Kirklen
v. Buffalo Wild Wing Int'l, Inc., No.
3:18-cv-00468-FDW-DSC, 2019 WL 1649984, at *1 (W.D. N.C. Apr.
17, 2019) (citing Francis v. Allstate Ins. Co., 709
F.3d 362, 369 (4th Cir. 2013)); see also Talantis v.
Paugh Surgical, Inc., 273 F.Supp.2d 710, 713 (M.D. N.C.
2003) (court may consider extrinsic evidence). In this
district, courts have applied the preponderance of the
evidence standard to a party invoking its subject matter
jurisdiction. See Dash v. FirstPlus Home Loan Owner
Trust 1996-2, 248 F.Supp.2d 489, 497 (M.D. N.C. 2003).
North Carolina, a plaintiff is prohibited from claiming
specific damages in certain cases (though this does not
appear to be one of them), resulting in a common practice of
alleging only the statutory jurisdictional threshold for
superior court. See N.C. R. Civ. P. 8(a) (providing $25, 000
for negligence actions and all actions seeking punitive
damages). Palacios's complaint follows this practice,
although it refers to the prior threshold of $10, 000.00.
(Doc. 5 at 6.) Nevertheless, the complaint seeks “lost
wages, lost benefits, and other economic losses, ”
“treble damages, ” “attorney fees, ”
“punitive damages, ” “emotional pain,
damage to her reputation, deterioration of her emotional and
physical health, and loss of enjoyment of life, ”
“lost compensation and tangible job benefits, ”
and “back pay, front pay, compensatory and punitive
damages.” (Doc. 5 ¶¶ 49, 50, 51, 55-57.)
Tyson's calculation of back pay is supported by the
declaration of a corporate representative, and Palacios has
not contended it is incorrect. Thus, the back pay award alone
could be $29, 848.00. Trebled, under N.C. Gen. Stat. §
95-243, this amounts to $89, 544.00, easily crossing the
jurisdictional threshold, irrespective of punitive damages
and an award of statutory attorneys' fees under N.C. Gen.
Stat. § 95-243(c). Bell v. Preferred Life Assurance
Soc'y, 320 U.S. 238, 240 (1943) (“Where both
actual and punitive damages are recoverable under a complaint
each must be considered to the extent claimed in determining
the jurisdictional amount.”); Mattison v. Wal-Mart
Stores, Inc., No. 6:10-CV-01739-JMC, 2011 WL 494395, at
*3 (D.S.C. Feb. 4, 2011) (denying remand where
plaintiff's request for punitive damages made it
“difficult for [Plaintiff] to prove she could not
possibly recover the jurisdictional limit were she to prevail
at trial.”); Francis, 709 F.3d at 369 (considering
attorneys' fees in calculating amount in controversy).
contention that remand is required because Tyson's
removal notice failed to provide this information lacks
merit. In Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 200 (4th Cir. 2008), the court reversed a
district court's remand of an action, holding that a
removing party's notice need only meet the pleading
standard imposed for the initial complaint. However, once the
jurisdictional allegations are challenged, “[t]he party
seeking removal bears the burden of demonstrating that
removal jurisdiction is proper.” Id. (quoting
In re Blackwater Security Consulting, LLC, 460 F.3d 576, 583
(4th Cir. 2006)). Tyson has done so here. While its removal
notice alleged that “[t]he amount in controversy in
this case exceeds $75, 000, exclusive of interest and costs,
” and noted that “[i]n addition to actual
damages, Plaintiff seeks to recover treble damages and
unspecified punitive damages” (Doc. 1 at 2), upon
Palacios's challenge, Tyson has provided the above
information by way of the declaration of a company
representative (Doc. 13-1 at 2). This meets its burden to
reasons stated, Tyson has demonstrated that diversity
jurisdiction exists such that this court has the ...