Removal from State court to Federal court – A tale of two Virginias

Removal from State court to Federal court – A tale of two Virginias

By Matthew L Liller, Esq.

Edited by Bill Pfund, Esq.

If you’re reading this article, you are likely aware that diversity jurisdiction in Federal court requires the parties to be citizens of different states and the amount in controversy to exceed $75,000. See 28 U.S. Code 1332. However, determining whether a case meets the required amount in controversy – and can therefore be removed to Federal court after its filing by a plaintiff in State court – can be very different between Virginia and West Virginia.

In Virginia, this determination is pretty easy. Virginia Supreme Court Rule 3:2 requires that every Complaint requesting money damages contain an “ad damnum” clause stating the amount of damages sought. That means, in Virginia, if the amount sued for in the Complaint is more than $75,000 and the parties are diverse, the case can usually be removed to Federal Court.

West Virginia, on the other hand, is much different. By statute (WV Code § 55-7-25), no specific dollar amount relating to damages being sought can be included in the Complaint. West Virginia district dourts have addressed this issue, and while the courts employ some variances in how to get there, the burden always rests on the defendant to prove by a preponderance that the amount in controversy exceeds the jurisdictional minimum. This requires the assertion of specific facts in the defendant’s Notice of Removal pleading.

The district court will consider a number of factors, including the plaintiff’s injuries, expenses, settlement demands, amounts awarded in similar cases, and punitive damages, when appropriate. See McCoy v. Erie Ins. Co., 147 F.Supp2d 481 (SD W. Va. 2001). The district court will also take a common-sensical look at the case to determine the approximate amount in controversy. Id. West Virginia district courts are split on whether a settlement demand in excess of $75,000, by itself, satisfies the amount in controversy requirement. See Scaralto v. Ferrell, 826 F.Supp2d 960 (SD W. Va. 2011); Heller v. TriEnergy, Inc., 2012 U.S. Dist. LEXIS 94003 (ND W. Va. 2012). It is clear, however, that West Virginia District Courts require more than just a plaintiff’s allegation of serious or permanent injury.

The attorneys at KPM LAW are here to assist in evaluating whether your case can (and perhaps should) be removed to Federal court, regardless of venue in Virginia or West Virginia.

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