Opinion
1:01CV1106
January 8, 2003
MEMORANDUM OPINION
This matter is before the Court on Defendant Roche Holdings Ltd.'s Motion to Dismiss [Document #3] as well as Defendant Bayer Corporation's Motion to Dismiss [Document #5]. For the reasons stated herein, the Court has determined it lacks jurisdiction in the case and therefore must REMAND this matter to the General Court of Justice, Superior Court Division, Moore County, North Carolina. Accordingly, the Court defers the consideration of Defendants' other pending motions to the appropriate court upon remand as ordered by this Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 2001, Plaintiff filed the Complaint in the present action in Superior Court, Moore County, North Carolina. On December 17, 2001, Defendants Bayer Corporation and Roche Holdings Ltd. ("Defendants") jointly filed a motion to remove the case to Federal Court [Document #1]. As justification for removal, Defendants premise the original jurisdiction of this Court "on grounds of diversity of citizenship, 28 U.S.C. § 1332," and they assert that "the amount in controversy exceeds $75,000.00 on the face of the Complaint." (Notice of Removal, ¶ 7, 9). Shortly after removing the action, on December 21, 2001, Defendant Roche Holdings Ltd. and Defendant Bayer Corporation each filed Motions to Dismiss [Document numbers 3 and 5, respectively]. After the filing of Defendants' Motions to Dismiss, but still within the 30 day time limit for filing a motion for remand, Plaintiff filed a pleading on January 10, 2002 entitled "Plaintiff's Response to Notice of Removal" [Document #7]. This document did not address or in any way make reference to Defendants' Motions to Dismiss.
Although this Defendant is labeled "Roche Holdings Ltd." in the Complaint and in the headings of all pleadings associated with this action, the Court notes this Defendant has consistently pointed out that its correct name is "HLR Consumer Health, Inc." and that "Roche Holdings" is actually the name of Defendant's parent. However, for purposes of clarity and consistency the Court will continue to refer to this Defendant as Roche Holdings Ltd., as it is titled in the action.
Thereafter, Plaintiff did not timely respond to Defendants' Motions to Dismiss. Subsequently, on February 13, 2002, the Clerk of this Court issued Plaintiff a letter [Document #8] advising Plaintiff that Defendants' motions would be considered uncontested if she did not respond and show excusable neglect for not earlier responding on time. In the letter, the Clerk further advised that, if Plaintiff submitted no further filings, the Motions to Dismiss would be referred to this Court on February 28, 2002 for consideration on an unopposed basis. Plaintiff ultimately filed responses [Document numbers 9 and 10] to the Motions to Dismiss on March 11, 2002. The responses are identical in their main arguments. In each, Plaintiff refers to a motion she filed on "January 14, 2002" in which she "oppos[ed] the removal of the action. (Plaintiff's Response to Bayer Corporation Motion to Dismiss, ¶ 2; Plaintiff's Response to Roche Holdings Ltd. Motion to Dismiss, ¶ 2) Plaintiff then contends that "since this Court has not yet ruled on the issue of removal . . . it has not assumed jurisdiction of this action and the Defendant's motion to dismiss was filed prematurely." (Id., ¶ 4; Id., ¶ 4). Each response then closes with an individualized one-sentence alternative argument that is directed towards the substance of the separate Motions to Dismiss. Plaintiff requests that these alternative arguments be relied upon in the event the Court "grants the Defendant's request for removal . . . ." (Id. ¶ 5;Id., ¶ 5).
Even though Plaintiff cites January 14th as the date of filing, the Court can only assume this is a typographical error and she means to refer to the pleading filed on January 10th [Document #7], as that is the only other pleading she has filed with this Court.
On March 22, 2002, Defendants each filed reply briefs [Document #11 for Defendant Roche Holdings Ltd., and Document #12 for Defendant Bayer Corporation]. Both Defendants contend the Court should disregard Plaintiff's responses to their Motions to Dismiss because Plaintiff failed to file her responses in a timely manner, and that the Court should therefore consider the Motions to Dismiss to be unopposed.
II. DISCUSSION
Before addressing Defendants' Motions to Dismiss, the Court must first consider whether it has jurisdiction in this matter. A defendant may remove any civil action brought in state court over which "the district courts of the United States have original jurisdiction . . . ." 28 U.S.C. § 1441 (a); Davis v. North Carolina Dept. of Corr., 48 F.3d 134, 138 (4th Cir. 1995). However, because of inherent federalism concerns, the federal courts construe removal jurisdiction quite strictly. Mulcahey v. Columbia Organic Chems. Co. Inc., 29 F.3d 148, 151 (4th Cir. 1994). "Due regard for the rightful independence of state governments . . . requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the [removal] statute has defined." Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (quotation and citations omitted). Therefore, if the propriety of removal is doubtful, remand is necessary. Mulcahey, 29 F.3d at 151.
This Court's jurisdiction was automatically invoked at the time Defendants effected removal from state court, and such jurisdiction remains unless and until the case is remanded. 28 U.S.C. § 1446 (d). However, before this Court can consider Defendants' Motions to Dismiss a determination must be made as to whether the court has jurisdiction over this action and, thus, whether removal was proper. If it appears there is a defect in the removal of the action a motion can be made to remand the case to state court, provided such a motion comes "within 30 days after the filing of the notice of removal . . . ." 28 U.S.C. § 1447 (c). Additionally, courts are free to raise the question of subject matter jurisdiction sua sponte at any time before final judgment. United States v. White, 139 F.3d 998, 999-1000 (4th Cir. 1998); 28 U.S.C. § 1447 (c). The party seeking to preserve the removal then bears the burden of establishing federal jurisdiction. Mulcahey, 29 F.3d at 151; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936).
The Court will turn now to the question of whether a motion for remand has been made. Although no specific reference is made to a request for a remand, in substance, Plaintiff's pleading filed on January 10, 2002 entitled "Response to Notice of Removal" is indubitably an opposition to Defendants' removal of this action. In this pleading Plaintiff argues that "there is a lack of complete diversity of citizenship between Plaintiff and Defendants . . . and the amount in controversy does not exceed $75,000.000." [sic] (Plaintiff's Response to Notice of Removal, ¶ 4). Accordingly, Plaintiff concludes, "the entire civil action may not be removed . . . ." (Id. ¶ 4). Plaintiff does not explicitly request a remand, however, remand is the only appropriate remedy available and it is directly implicated by Plaintiff's argument. In light of these considerations and given the recognizable substance of Plaintiff's pleading filed on January 10, 2002, the Court will deem this document to be a motion for remand.
In identical footnotes, Defendants both respond to Plaintiff's jurisdictional argument by noting that her "Response to Notice of Removal" does not "specifically request a remand back to state court" and it should not be deemed a "Motion" as it does not strictly comply with Rule 7(b)(1) of the Federal Rules of Civil Procedure. (See, e.g., Defendant Roche Holdings, Ltd's Reply Brief In Support of Its Motion To Dismiss, p. 3 n. 2). In this instance the Court will look beyond rigid wording requirements to the overarching mandate of Rule 8(f) which reads: "All pleadings shall be so construed as to do substantial justice." Fed.R.Civ.P. 8(f). Although not properly labeled, the substance of Plaintiff's "Response to Notice of Removal" is certainly ascertainable and, given the considerations just discussed regarding removal jurisdiction, substantial justice is served in deeming the document to be a motion for remand. Additionally, the Court notes that the issue of subject matter jurisdiction may be raised by the Court, at any time, sua sponte, and the Court need not rely on the labeling of Plaintiff's pleading as the sole basis for addressing this issue.
Having done so, the Court must next address the question of whether remand is appropriate. Here, Defendants removed the action on the basis of diversity jurisdiction. Federal District Courts have original jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between citizens of different States . . . ." 28 U.S.C. § 1332(a)(1).
Plaintiff's Complaint does not include a specific demand for monetary relief, or request an actual dollar figure. In their Notice of Removal, Defendants acknowledge that the Complaint fails to include any express demand for monetary relief, but they state that "the amount in controversy exceeds $75,000 on the face of the Complaint." (Notice of Removal, ¶ 9(d)). This conclusion is based on the fact that "Plaintiff claims to have suffered a severe allergic reaction, pain and suffering, and medical bills as a result of Defendants' alleged negligence . . . ." (Id.). In her Response to Notice of Removal Plaintiff disagrees, stating that "the amount in controversy does not exceed $75,000.000. [sic]" (Plaintiff's Response to Notice of Removal, ¶ 3).
Since "[t]he burden of establishing federal jurisdiction lies on the party seeking to litigate in federal court," it is Defendant who must show that the amount in dispute exceeds $75,000. Gwyn v. Wal-Mart Stores. Inc., 955 F. Supp. 44, 45 (M.D.N.C. 1996) (citing McNutt, 298 U.S. at 189, 56 S.Ct. at 785, 80 L.Ed. 1135). Although the Fourth Circuit has not yet addressed what standard of proof applies in meeting this burden as to the amount in controversy, this Court finds that the approach to this issue taken by others in the District is persuasive, and therefore adopts the "preponderance of evidence" standard applied by several other circuits. See Turner v. CTS Con-Way Transp. Services, 1999 WL 1939243, at *1 (M.D.N.C. Apr. 28, 1999) (adopting a preponderance standard and citing circuits which have done so as well). In determining the jurisdictional amount, "the district court may consider whether it is facially apparent from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition . . . ." Id. at *2 (internal quotations omitted). Essentially, when the complaint is ambiguous as to the value of the action, "until jurisdiction becomes determinate, the court may consider any evidence of the amount in controversy." Gwyn, 955 F. Supp. at 46.
See Gwyn, 955 F. Supp. at 46 (stating that the Fourth Circuit has not adopted a specific rule for determining the amount in controversy for jurisdictional purposes); Rota v. Consolidation Coal Co., 175 F.3d 1016 **1 n. 4 (4th Cir. 1999) (Table) (noting that the proper standard for assessing the value of an unspecified damage claim is subject to debate and declining to adopt a position).
Here, there is a definite uncertainty in viewing the face of the Complaint as to what is the amount in controversy. Defendants' removal petition does not clear the waters; it merely refers back to the Complaint's general claims of an "allergic reaction, pain and suffering, and medical bills . . . ." (Notice of Removal, ¶ 9(d)). Moreover, none of Defendants' pleadings introduce evidence or make arguments as to the amount in controversy. The only document shedding any light on the matter is Plaintiff's Response to Notice of Removal in which she states, "the amount in controversy does not exceed $75,000.000. [sic]" (Plaintiff's Response to Notice of Removal, ¶ 3). To the extent this is a stipulation or admission by Plaintiff, the Court will consider it as some evidence of the value of the claim. See, e.g., Gwyn, 955 F. Supp. at 46-47 (taking into consideration plaintiff's stipulation concerning the value of her claim). More important though, is the question of whether Defendants have met their burden of establishing the amount in controversy by a preponderance of the evidence. The Court finds that Defendants' speculative statements, premised solely on Plaintiff's undetailed claims, fail to meet this burden. See Id. (jurisdiction cannot be based on speculation).
To establish federal jurisdiction the amount in controversy must be greater than $75,000 and there must be complete diversity between the parties. Having determined that Defendants have not demonstrated that the required amount in controversy is present to give the Court jurisdiction, the Court need not reach the disputed issue of whether complete diversity exists. Consequently, the Court finds it does not have subject matter jurisdiction in this matter and therefore REMAND is necessary. As such, the Court is without jurisdiction to decide the issues raised by Defendants' Motions to Dismiss beyond the question of whether the Court has proper jurisdiction over this matter.
III. CONCLUSION
For the reasons stated above, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this matter is hereby remanded to the General Court of Justice, Superior Court Division, Moore County, North Carolina. An Order and Judgment in accord with this Memorandum Opinion shall be filed contemporaneously herewith.