Scaralto v. Ferrell, 2011 U.S. Dist. LEXIS 136703

May 12, 2009 accident on U.S. Route 35 near Henderson, WV involving Scar-alto and driver Ferrell employed by TMC Transportation.
Plaintiff filed state-court complaint in Kanawha County on February 18, 2011 seeking damages and punitive damages.
Ferrell and TMC Transportation removed to federal court on August 8, 2011, attaching TMC’s consent; removal based on § 1446(b).
Plaintiff’s medical bills were under $15,000 at filing; plaintiff issued a July 8, 2011 settlement demand for $150,000.
Question presented: whether federal jurisdiction exists based on amount in controversy, given ownership of settlement demand and absence of ad damnum amount in the complaint.
Statutory context: WV Code § 55-7-25 (2008) limits explicit dollar damages in complaints.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removal was proper given amount in controversy	Scaralto maintains no enforceable ad damnum over $75k	Scar alto's settlement demand over $75k supports jurisdiction	Removal proper; amount in controversy satisfied by $150k demand
Effect of settlement demand on amount in controversy	Demand should not be conclusive evidence of amount	Settlement demand should be treated as amount in controversy	Settlement demand over $75k generally controls unless legal certainty of less than $75k

Smithers v. Smith, 204 U.S. 632 (1907) (value controls unless legally impossible to recover jurisd. amount)
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938) (removal allowed despite later reduction if claim appears to be in controversy)
Sayre v. Potts, 32 F.Supp.2d 881 (S.D.W.Va. 1999) (discussed burden of proof in removal context)
Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (settlement/minimum threshold treated as amount in controversy)
McCoy v. Erie Ins. Co., 147 F.Supp.2d 481 (S.D.W.Va. 2001) (preponderance of the evidence standard when no ad damnum over $75k)