ORDER
Pending before the Court is the plaintiffs’ motion to remand this action to the Circuit Court of Wood County, West Virginia. The plaintiffs, Charlotte Judy Sayre and Stewart Sayre, contend that because the amount in controversy does not exceed $75,000, the Court does not have subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1332, 1441(a). The defendants, Cherrington Scrap Metals, Inc. (Cherrington) and Brian K. Potts(Potts), have filed a response to the plaintiffs’ motion in which they claim that the case satisfies the jurisdictional requirement. After reviewing the legal memoranda and evidencе submitted by the parties, the Court concludes that the amount placed into controversy by Mrs. Sayre’s elaim exceeded $75,000 when the case was removed and that the Court therefore has jurisdiction over Mrs. Sayre’s claim. The Court further concludes that it has supplemental jurisdiction over Mr. Sayre’s claim pursuant to 28 U.S.C. § 1367. Based upon these conclusions, the Court DENIES the plaintiffs’ motion to remand.
I. Statement of the Case
This action arises from an automobile accident that occurred on November 18, 1996 in Parkersburg, West Virginia. At the time of the accident, Potts was driving his truck in the course and sсope of his employment for Cherrington. (Compl.¶ 6.) The Sayres claim that Potts operated his truck negligently,, in that Potts ran a red light and collided with Mrs. Sayre’s vehicle. (Id. ¶ 4.) As a result of the accident, Mrs. Sayre alleges that she suffered the following:
serious and permanent injuries and damages, past present and future, including, but not limited to the following: temporary and permanent physical injuries; medical and related expenses, amounting to approximately $5,270.00 to date; physical pain and suffering; mental anguish; loss of income, earnings and business profits; loss of eаrning capacity; loss of enjoyment of life; other intangible damages; other damages and expenses.
(Id. ¶ 13.) Mr. Sayre seeks damages based on his “loss of the comfort, companionship, society and consortium of his wife, the plaintiff, Charlotte Judy Sayre.” (Id. ¶ 15.) The ad damnum clause of the complaint does not state a dollar amount. (Id. at 4.)
The defendants removed this case from state court pursuant to 28 U.S.C. § 1441(a), which allows defendants to remove cases to federal court if the court would have had original jurisdiction over the matter. The defendants base federal jurisdiction upon diversity jurisdiction pursuant to 28 U.S.C. § 1332. Under that statutory provision, federal district courts have original jurisdiction over a case if the case involves citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. Without question, diversity of citizenship exists in this ease: the plaintiffs are residents of Jackson County, West Virginia; Potts is a resident of Ohio; and Cherrington is an Ohio corporation with its principle place of business in Jackson, Ohio. The key issue is whether the $75,000 jurisdictional amount is satisfied as to each plaintiff. 1
II. Standard of Review
The party seeking to remove a ease to federal court has the burden of establishing federal jurisdiction.
Mulcahey v. Columbia Organic Chem. Co., Inc.,
Neither the Supreme Court nor the Fourth Circuit has adopted a specific standard against which a defendant’s attempt to prove the required amount in controversy for a removal motion will be weighed when the plaintiff does not provide a specific damage amount in his complaint.
2
In the Southern District of West Virginia, a difference of opinion exists among the various judges over the appropriate standard in such cases. One district judge stated that the defendant must prove to a “legal certainty” that the amount in controversy meets the jurisdictional requirement.
See White v. J.C. Penney Life Ins. Co.,
After carefully considering the well-reasoned opinions of the district judges within this district, this Court adopts the preponderance of the evidence standard as the appropriate measure of whether the defendant has proven that the jurisdictional limit has been met in removal cases in which the original complaint does not state a specific damages amount. First, the legal certainty test that the United States Supreme Court formulated in St. Paul Mercury Indemnity Co. v. Red Cab Co. is inapрropriate for remand actions when the complaint does not contain a dollar value for claimed damages. In St. Paul Mercury, the Supreme Court stated that
The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.
A different situation is presented in the case of a suit instituted in a state court and thence removed. There is a strong presumption that the plaintiff has not claimed a large amount in order to confer jurisdiction on a federal court or that the parties have colluded to that end. For if such was the purpose suit would not have been instituted in the first instance in the state but in the federal court.
St. Paul Mercury,
Second, “the closest Supreme Court
dictum
on point suggests that a defendant need only prove by a preponderance of the evidence that the requisite amount exists.”
Landmark Corp.,
Finally, in situations in which the plaintiff has not specified the damages that he seeks, the preponderance of the evidence standard strikes “[t]he proper balance between a plaintiffs right to choose his forum and a defendant’s right to remove, without unnecessarily expanding federal diversity jurisdiction.”
Tapscott,
In order to meet the preponderance of the evidence standard and to establish jurisdiction upon removal, a defendant must show that it is more likely than not that the amount in controversy exceeds the jurisdictional amount.
Landmark Corp.,
In addressing the propriety of federal jurisdiction in a removal action, courts base their decision on the record existing at the time the petition for removal was filed.
St. Paul Mercury,
the type and extent of the рlaintiffs injuries and the possible damages recoverable therefore, including punitive damages if appropriate. The possible damages recoverable may be shown by the amounts awarded in other similar cases. Another factor for the court to consider would be the expenses or losses incurred by the plaintiff up to the date the notice of removal was filed. The defendant may also present evidence of any settlement demands made by the plaintiff prior to removal although the weight to be given such demands is a mattеr of dispute among courts.
Watterson,
III. Discussion
A. Mrs. Sayre’s Claim
The starting point for ascertaining the amount in controversy when the petition for removal was filed is obviously the complaint itself.
See Hicks v. Universal Housing, Inc.,
However, the analysis does not stop with a perusal of the “notice pleading” complaint. The parties have offered additional materials relating to the settlement negotiations that reflect upon the extent of Mrs. Sayre’s injuries and the amount in controversy.
See Mullins,
Second, details as to the nature and extent of Mrs. Sayre’s injuries are found in the correspondence between counsel for the parties. In the August 27, 1998 demand letter, Mrs. Sayre’s attorney outlined the scope of Mrs. Sayre’s injuries and the nature of her damages to support her settlement demand. In that letter, plaintiffs’ counsel noted that Mrs. Sayre’s treating physician, Dr. Shramowiat, opined that Mrs. Sayre suffered cervical and right shoulder injuries that will cause her pain рeriodically for the rest of her life and will likely require further medical attention. (Notice of Removal Ex. B at 2.) Further, plaintiffs’ counsel stated that based upon Dr. Shramowiat’s indications, “Ms. Sayre may have a need for surgical intervention to remove the exostosis at the anteri- or acromion.” (Id. (emphasis in original).) As for damages, plaintiffs’ counsel contended that Mrs. Sayre “remains under the care of Dr. Shramowiat and has certainly endured a great amount of pain, suffering, inconvenience, annoyance and aggravation damages as the direct an [sic] proximate result of Mr. Pott’s negligence.” (Id.) Plaintiffs’ counsel claimed that the experience had been a “nightmare” for the Sayres and “[n]o amount of money will ever restore Ms. Sayre’s health to the level she enjoyed prior to this wreck.” (Id. at 3.) Additionally, in the September 21, 1998 demand letter, plaintiffs counsel stated that “Ms. Sayre is forced to work and live, on a day to day basis, in pain” and noted that surgery was a possibility for Mrs. Sayre. (Notice of Removal Ex. C at 1.)
Third, there is evidence in the record concerning negotiations occurring after the Sayres filed suit in state court. On November 18, 1998, the defendants filed a notice of removal asserting that the amount in cоntroversy exceeded $75,000. Five days later, the Sayres jointly submitted a demand of $74,500 to settle their claims against the defendants. They state that the reason for the increase was Mrs. Sayre’s referral “to an orthopedic
Reviewing the allegations of the complaint, the memoranda filed by the parties, the settlement negotiatiоn history of this case, and the representations made by the parties during the negotiations, the Court concludes that the defendants have satisfied their burden of proof by establishing by a preponderance of the evidence that the amount in controversy in Mrs. Sayre’s action exceeded $75,000. With regard to the pre-suit negotiations, the Court notes that Mrs. Sayre made two settlement offers that were well above the jurisdictional limit, both of which plaintiffs’ counsel described as “fair.” In addition, her counsel characterized the defendants’ settlement offer as “woefully insufficient” and stated that “$30,000 does not nearly reflect the true value of Ms. Sayre’s claim.” (Notice of Removal Ex. C at 1.) Furthermore, plaintiffs’ counsel’s description of Mrs. Sayre’s permanent injuries and loss of earning capacity suggest an amount of damages in excess of $75,000. As for the post-suit negotiations, Mrs. Sayre’s referral to an orthopedic doctor bolsters the defendants’ claim that the higher settlement figures more adequately Reflect the amount in controversy at the time of removal. Based on this evidence, the Court finds that it is mоre likely than not that the amount in controversy in Mrs. Sayre’s claim is greater than the jurisdictional limit.
The Court is unpersuaded by the plaintiffs’ arguments that the defendants’ rejection of their $60,000 settlement offer and the defendants’ repeated offers of $30,000 are proof that the amount in controversy does not exceed the jurisdictional limit. First, in determining the amount in controversy, the Court looks to the potential judgment if the plaintiff were to prevail on the merits of the case as presented in the complaint at the time of removal, not at the amount that it wоuld take to resolve the case through settlement.
Compare Landmark Corp.,
Despite their arguments, the plaintiffs’ post-removal settlement offer of $74,500— $500 below the statutory limit — does not prove that the action fails to satisfy the jurisdictional amount. To the contrary, such a settlement offer lends credence to the proposition that the amount in controversy at the time of removal actually exceeded the $75,000 threshold. “In order to allow for the hazards and cost of litigation, settlement offers routinely represent a discount from the damages plaintiffs will attempt to prove at trial.”
Mullins,
For all of these reasons, the Court finds by a preponderance of the evidence that the amount in controversy in Mrs. Sayre’s claim exceeds the jurisdictional limit. Accordingly, the Court finds that it has subject matter jurisdiction over this controversy and denies her motion to remand.
B. Mr. Sayre’s Claim
Neither the plaintiffs nor the defendants have supplied any argument or evidence regarding the amount placed in controversy. by Mr. Sayre’s consortium claim. Upon review of the record, it is fair to conclude that Mr. Sayre’s action is very much a secondary and less significant claim. Without any information regarding the extent of
However, the Court may exert supplemental jurisdiction over Mr. Sayre’s claim pursuant to 28 U.S.C. § 1367. Section 1367 provides in pertinent part:
(a) Except as provided in subsections (b) and (c) ..., in any civil action of which the district courts have original jurisdiction, the district courts shall have original jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.... (b) In any civil action of which the district courts have original jurisdiction, founded solely on section 1332 of this title, the district courts shall -not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
28 U.S.C. § 1367(a)-(b). The plain language of this statute clearly permits the Court to exercise supplemental jurisdiction over Mr. Sayre’s claim. His cause of action arises out of the same automobile accident that injured his wife; thus, it is part of the same case or controversy as his wife’s claim. Furthermore, although the Court’s original jurisdiction, in this case is grounded solely in Section 1332, the plaintiffs originally brought their claims together, not pursuant to Rules 14,19, 20, or 24 of the Federal Rules of Civil Procedure. ■
The Court is aware that the plain language of 28 U.S.C. § 1367 has the practical effect of legislatively superseding a portion of the Supreme Court’s decision in
Zahn v. International Paper Co.
The Court is also aware of the inconsistent statements of intent in the legislative history of Section 1367.
See Lindsay v. Kvortek,
The Court’s decision to exercise supplemental jurisdiction under Section 1367 is largely discretionary.
Shanaghan v. Cahill,
The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original jurisdiction; or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
In this case, the Court believes that the equities weigh in favor of exercising supplemental jurisdiction over Mr. Sayre’s cause of action. First, this action is a simple automobile accident case that does not raise any novel or complex issues of state law. Second, Mrs. Sayre’s claim appears to predominate substantially in value over Mr. Sayre’s claim. While Mrs. Sayre apparently has received extensive medical treatment, may require surgery and care in the future, and may suffer permanent injury, Mr. Sayre’s claim seems to have been added only upon litigation. Third, maintaining both claims in one lawsuit furthers the interests of judicial economy, convenience, and fairness.
Cf. Shanaghan,
IV. Conclusion
The Court accordingly DENIES the plaintiffs motion to remand and DIRECTS the Clerk to send a copy of this ORDER to counsel of record and any unrepresented parties.
Notes
. “West Virginia recognizes that a loss of consortium action is distinct from the injured spouse’s underlying tort claim.”
DuPont v. United States,
. The Sayres’ reliance on Judge Staker’s opinion in
Watterson v. GMRI,
. In
Landmark Corp. v. Apogee Coal Co.,
Judge Copenhaver referred to the test that Judge Faber applied in
White
and
Mullins
as an "inverted legal certainty test.”
Landmark Corp.,
. Some courts have characterized this standard as requiring the party seeking to invoke federal jurisdiction to establish that " 'there is a probability that the value of the mattеr in controversy' exceeds the jurisdictional amount.”
Corwin Jeep Sales & Serv., Inc. v. American Motors Sales Corp.,
. The Court finds support for its conclusion in
Booty v. Shoney’s, Inc.,