United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE
the Court are a Motion to Dismiss filed by Defendant, Capital
One Bank (USA), National Association, a subsidiary of Capital
One Financial Corporation (“Capital One”), (ECF
No. 7), and a Motion to Remand filed by Plaintiff, Colette
Shen, (ECF No. 10). For the reasons stated below,
Plaintiff's Motion to Remand will be granted.
Accordingly, Defendant's Motion to Dismiss will be denied
originally filed her Complaint in the North Carolina Superior
Court for Orange County. (ECF No. 2.) Shen seeks to recover
for charges she made on her Capital One credit card while
briefly ensnared in a scheme by which fraudsters
impersonating government agents demanded that she purchase
$20, 000 worth of gift cards. (See id.) Plaintiff
eventually contacted the police about this scheme, but
Defendant declined to remove the charges from her card or to
reimburse her. (See Id. ¶¶ 21, 24-25.)
Plaintiff then sued alleging three state law causes of
action-breach of contract or, in the alternative, negligence,
and unfair and deceptive trade practices in violation of N.C.
Gen. Stat. § 75-1.1. (Id. ¶¶ 26-43.)
Plaintiff's Complaint requests (1) “in excess of
$20, 000.00 for breach of contract or negligence”; (2)
an award “in excess of $20, 000.00 trebled” for
Defendant's alleged unfair trade practice; and (3)
statutory attorneys' fees pursuant to N.C. Gen. Stat.
§ 75-16.1. (Id. at 7.)
removed the matter to this Court, asserting jurisdiction
based on diversity of citizenship and an amount in
controversy exceeding $75, 000 pursuant to 28 U.S.C. §
1332. (ECF No. 1 ¶ 3.) Plaintiff now moves to remand
this case on the grounds that the amount in controversy is
not satisfied. (ECF No. 10 at 1.)
cases removed from state to federal court, the party seeking
removal bears the burden of demonstrating jurisdiction.
Strawn v. AT & T Mobility LLC, 530 F.3d 293, 296
(4th Cir. 2008). A lack of subject matter jurisdiction
obligates the court to remand the case. 28 U.S.C. §
1447(c); see Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 200 (4th Cir. 2008). Moreover,
“[b]ecause removal jurisdiction raises significant
federalism concerns, [courts] must strictly construe removal
jurisdiction” and remand whenever “federal
jurisdiction is doubtful.” Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
case has been removed on the basis of diversity, the amount
in controversy must exceed $75, 000 exclusive of interest and
costs. Dash v. FirstPlus Home Loan Tr. 1996-2, 248
F.Supp.2d 489, 495 (M.D. N.C. 2003) (citing 28 U.S.C. §
1332(a)). “The amount in controversy is determined at
the time of removal.” Quality Labels &
Packaging, Inc. v. Wells Fargo Bank, N.A., No.
1:19CV210, 2019 WL 2992219, at *2 (M.D. N.C. July 9, 2019).
“[W]here the total amount in controversy is not readily
apparent from the face of the complaint, the district court
should independently determine the reasonable value of the
claims.” Id. at *3. Such determinations are
made by the preponderance of the evidence, see Scott v.
Cricket Commc'ns, LLC, 865 F.3d 189, 194 (4th Cir.
2017), with courts employing their “judicial experience
and common sense, ” but not looking to the merits of
the underlying claims. Costin v. Ally Bank Corp, No.
7:13-CV-113-BO, 2013 WL 4828576, at *2 (E.D. N.C. Sept. 10,
2013). Treble damages are included in calculating the amount
in controversy. See Quality Labels, 2019 WL 2992219,
at *3. Courts may also aggregate multiple claims “when
the applicable law would permit separate recoveries for each
claim.” Blettner v. Masick, No. 1:15CV474,
2015 WL 7575924, at *2 (M.D. N.C. Nov. 25, 2015).
“However, where two or more claims are alternative
theories of recovery for the same harm, they may not be
aggregated.” Gallo v. Homelite Consumer
Prods., 371 F.Supp.2d 943, 947 (N.D. Ill. 2005); see
also Suber v. Chrysler Corp., 104 F.3d 578, 588 (3rd
Cir. 1997) (“[I]f these claims are alternative bases of
recovery for the same harm under state law . . . a court
should not aggregate the claims to arrive at the amount in
controversy.”); Johnson v. Xerox Educ. Sols.
LLC, No. GJH-14-CV-15422, 2014 WL 5361302, at *4 (D. Md.
Oct. 20, 2014) (“[C]laims that are simply pleading
alternative legal theories to recover for one harm cannot be
aggregated to reach the amount in controversy
threshold.”); Halstead v. Southerncare, Inc.,
No. 4:05-CV-76, 2005 WL 2261454, at *2 (W.D. Mich. Sept. 16,
2005) (“[T]wo claims must not be aggregated if they are
alternative bases of recovery for the same harm under state
law.”) (internal quotations and citations omitted).
Plaintiff argues remand is required because the amount in
controversy has not been met. (ECF No. 10 at 1.) According to
Plaintiff, it would be improper to aggregate her $20, 000
claim for breach of contract or negligence with her $60, 000
($20, 000 trebled) claim for unfair trade practices.
(See ECF No. 10 at 3.) Thus, Plaintiff estimates the
amount in controversy to be $60, 000 plus attorneys' fees
which Plaintiff's counsel states would not amount to $15,
000. (Id.) Thus, Plaintiff's theory of remand is
that $20, 000 in damages trebled plus some amount less than
$15, 000 in attorneys' fees falls short of the pivotal
$75, 000 threshold. (See id.) Defendant disagrees
with Plaintiff's theory for two reasons. First, Defendant
contends that “federal courts in North Carolina have
allowed [parties] to aggregate the damages alleged for a
breach of contract or negligence claim along with . . .
damages alleged for . . . unfair trade practices claim[s]
where both are included in the same pleading.” (ECF No.
13 at 4.) Second, Defendant asserts that Plaintiff could
receive more than $15, 000 in attorneys' fees.
(Id. at 6-7.) As explained below, the Court agrees
Aggregation of Plaintiff's Claims is Inappropriate
is correct that when calculating the amount in controversy,
federal courts in North Carolina have, at times, aggregated
the damages from breach of contract, negligence, and unfair
trade practices claims. See, e.g., Thind v. PNC
Bank, Nat. Ass'n, No. 5:13-CV-00619-FL, 2013 WL
6326600, at *2 (E.D. N.C. Dec. 4, 2013); Law Offices of
Michele A. Ledo, PLLC v. BellSouth Advert. & Publ'g
Corp., No. 5:07-CV-236-BO, 2008 WL 11429808, at *3 (E.D.
N.C. Mar. 27, 2008); Lee Elec. Const., Inc. v. Eagle
Elec., LLC, No. 1:03CV00065, 2003 WL 21369256, at *3 n.3
(M.D. N.C. June 10, 2003). However, these cases appear to
either omit discussion of the general prohibition against
aggregating alternative theories of liability for the same
harm or, as in the case of Thind, acknowledge
“suggestion under North Carolina law that the amount of
damages for breach of contract may not be aggregated with
those for unfair trade practices.” See 2013 WL
6326600, at *2 n.1.
contrast, in a recent opinion, Quality Labels &
Packaging, Inc. v. Wells Fargo Bank, N.A., the Middle
District squarely held that it was improper to aggregate a
plaintiff's six claims for relief-which included
negligence and unfair and deceptive trade practices-when each
claim asserted an “alternative legal theor[y] of
recovery for the same injury.” See 2019 WL
2992219, at *1, 4. In that case, a plaintiff alleged that
defendants fraudulently obtained approximately $43, 000 from
him by tricking him into transferring money into Wells Fargo
bank accounts they controlled. See Id. at *1, 4.
Though plaintiff pursued recovery of these funds under six
different legal theories, the Court refused to aggregate the
value of these individual claims “because [p]laintiff
[could] recover [the] amount only once.” Id.
calculating the amount in controversy in this case, the Court
will follow the Quality Labels approach for several
reasons. First, and most importantly, here, just as in
Quality Labels, Plaintiff has suffered only one
injury-the loss of the $20, 000 she spent on her credit
card-but brings suit alleging multiple theories of recovery,
including negligence and unfair and deceptive trade
practices. Aggregation is inappropriate in such circumstances
as North Carolina law prohibits a plaintiff from
“recover[ing] on more than one theory for the same
course of conduct.” See Blettner, 2015 WL
7575924, at *2 (quoting X-It Prods., L.L.C. v. Walter
Kidde Portable Equip., Inc., 227 F.Supp.2d 494, 523
(E.D. Va. 2002)). As discussed above, this is in keeping with
the rule that federal courts aggregate separate harms but not
alternative theories of liability for the same harm. See,
e.g., Gallo, 371 F.Supp.2d at 947. Second,
Plaintiff has represented that “the total possible
damages at issue amounts to . . . $60, 000.00.” (ECF
No. 10 at 3.) This militates against aggregation. See
Blettner, at *2 (declining to aggregate claims, in part,
because plaintiff did “not seek to recover separate
awards for each claim for relief”). Finally, the Court
is mindful that federalism concerns weigh in favor of remand
to state court whenever a federal court has reason to doubt
its jurisdiction over a case. See Mulcahey, 29 F.3d
at 151. In sum, it would be inappropriate to aggregate
Plaintiff's claim for ...