# MCDONALD v. AUTOMONEY, INC.

> District Court, M.D. North Carolina · November 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10253921

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253921

## How later opinions describe it (automated extraction)

- recognizing the “duty to construe removal jurisdiction strictly and resolve doubts in favor of remand”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

VICKIE MCDONALD, FENTRESS )
BROWN, TRISTA RHINEHART, and )
KAREN BANKS, )
)
Plaintiffs, )
)
v. ) 1:21CV114
)
AUTOMONEY, INC., and AUTOMONEY )
NORTH, LLC, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter comes before the court on a Motion to Remand,
(Doc. 12), filed by Plaintiffs Vickie McDonald, Fentress Brown,
Trista Rhinehart, and Karen Banks (“Plaintiffs”), and a Motion
to Transfer, (Doc. 15), filed by Defendants AutoMoney, Inc., and
AutoMoney North, LLC (“Defendants”). For the reasons that
follow, Plaintiffs’ Motion to Remand should be granted because
Defendants have failed to show by a preponderance of the
evidence that the amount in controversy exceeds $75,000. In
light of that, Defendants’ Motion to Transfer should be denied
without prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are North Carolina citizens who had automobile
title loans. (Complaint (“Compl.”) (Doc. 5) ¶¶ 1, 14.)
Defendants are companies “engaged in the automobile title loan
business in North Carolina.” (Id. ¶ 2.) The Complaint alleges
that “Defendants, via the internet, cellular telephone and other
media and communication methods solicited, marketed, advertised,
offered, accepted, discussed, negotiated, facilitated, collected
on, threatened enforcement of, and foreclosed upon automobile

title loans with Plaintiffs and other North Carolina citizens.”
(Id. ¶ 3.)
Plaintiffs brought their Complaint against Defendants in
Richmond County Superior Court alleging Defendants violated the
North Carolina Consumer Finance Act, N.C. Gen. Stat. § 53-165,
et seq., engaged in unfair and deceptive trade practices in
violation of N.C. Gen. Stat. § 75-1.1, and, in the alternative,
engaged in conduct that constituted usury in violation of N.C.
Gen. Stat. § 24-1.1, et seq. (Id. ¶¶ 20-37.) Defendants removed
the action to this court based on an assertion of diversity
jurisdiction, alleging that Plaintiffs are citizens and

residents of North Carolina, that Defendants are entities
organized under the laws of South Carolina and whose members and
shareholders are all residents of South Carolina, and that the
amount in controversy exceeds $75,000. (Notice of Removal
(Doc. 1) ¶¶ 3-4.)
Plaintiffs filed a Motion for Remand, (Doc. 12), and a
brief in support, (Pls.’ Br. in Supp. of Mot. to Remand (“Pls.’
Br.”) (Doc. 13)), requesting this court remand the matter to
North Carolina state court because Defendants have not met their
burden of showing the amount in controversy exceeds $75,000.
Defendants responded, (Mem. in Opp’n to Pls.’ Mot. for Remand
(“Defs.’ Resp.”) (Doc. 19)), and Plaintiffs replied, (Doc. 22).

Additionally, Defendants filed a Motion to Transfer, (Doc.
15), arguing that three of the four Plaintiffs signed forum
selection clauses that require the action be brought in the
District of South Carolina, and that the District of South
Carolina is a more convenient forum. Defendants filed a brief in
support of their motion, (Doc. 16), to which Plaintiffs
responded, (Doc. 20), and Defendants replied, (Doc. 23).
II. STANDARD OF REVIEW
The district courts of the United States have original
jurisdiction over civil actions where the amount in controversy
“exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1). Under 28 U.S.C. § 1441(a), a defendant may
remove “any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction[.]” 28 U.S.C. § 1441(a).
“The burden of establishing federal jurisdiction is placed
upon the party seeking removal. Because removal jurisdiction
raises significant federalism concerns, [district courts] must
strictly construe removal jurisdiction. If federal jurisdiction
is doubtful, a remand is necessary.” Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (internal
citations omitted); see also Palisades Collections LLC v.

Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (recognizing the “duty
to construe removal jurisdiction strictly and resolve doubts in
favor of remand”). The parties in this case agree that there is
diversity of citizenship. (Compare Pls.’ Br. (Doc. 13) at 7 with
Notice of Removal (Doc. 1) ¶ 3.) Thus, the question before this
court is whether Defendants have sufficiently shown the amount
in controversy exceeds $75,000.
III. ANALYSIS
To determine whether the amount in controversy exceeds
$75,000, this court begins with the general proposition that the
amount in controversy is “the sum demanded in good faith in the

initial pleading.” 28 U.S.C. § 1446(c)(2). If the amount in
controversy is unclear on the face of the initial pleading,
including where “the State practice either does not permit
demand for a specific sum or permits recovery of damages in
excess of the amount demanded[,]” the defendant may assert the
amount in controversy in the Notice of Removal. Id. That amount
“should be accepted when not contested by the plaintiff or
questioned by the court.” Dart Cherokee Basin Operating Co. v.
Owens, 574 U.S. 81, 82 (2014). However, if the plaintiff
contests the defendant’s assertion of the amount in controversy,
“both sides submit proof and the court decides, by a
preponderance of the evidence, whether the amount-in-controversy

requirement has been satisfied.” Id. at 88 (citing
§ 1446(c)(2)(B)).
The defendant “‘bears the burden of demonstrating that
removal jurisdiction is proper.’ When a plaintiff’s complaint
leaves the amount of damages unspecified, the defendant must
provide evidence to ‘show . . . what the stakes of litigation
. . . are given the plaintiff’s actual demands.’” Scott v.
Cricket Commc’ns, LLC, 865 F.3d 189, 194 (4th Cir. 2017)
(internal citations omitted) (alteration in original) (first
quoting Strawn v. AT & T Mobility LLC, 530 F.3d 293, 297 (4th
Cir. 2008), then quoting Brill v. Countrywide Home Loans, Inc.,

427 F.3d 446, 449 (7th Cir. 2005)). “The removability of a case
depends upon the state of the pleadings and the record at the
time of the application for removal.” Francis v. Allstate Ins.
Co., 709 F.3d 362, 367 (4th Cir. 2013) (internal quotation marks
omitted) (quoting Alabama Great S. Ry. Co. v. Thompson, 200 U.S.
206, 216 (1906)).
Here, Defendants must show “it is more likely than not that
‘a fact finder might legally conclude that’ damages will exceed
the jurisdictional amount.” Scott, 865 F.3d at 196 (quoting Kopp
v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002)). Thus, Defendants
“must provide enough facts to allow [this] court to determine –
not speculate – that it is more likely than not that the . . .

action belongs in federal court. Id. at 197 (citation omitted).
The Complaint does not give a specific amount in
controversy but provides that “[e]ach Plaintiff stipulates that
she is not seeking, will not seek and will not accept damages in
excess of $75,000.00.” (Compl. (Doc. 5) at 9.) Plaintiffs
Fentress Brown and Karen Banks also attached to their brief
individual declarations affirming their stipulations that they
will neither seek nor accept damages in excess of $75,000. (Doc.
13-4 ¶ 16; Doc. 13-7 ¶ 11.) Plaintiffs contend that by the
stipulation in the Complaint and their individual declarations,
no individual Plaintiff seeks damages in excess of $75,000.

(Pls.’ Br. (Doc. 13) at 16-17.) On the other hand, Defendants
contend that because North Carolina law does not limit
Plaintiffs to the amount in the Complaint, Plaintiffs are not
bound by the amount pleaded in their prayer for relief. (Defs.’
Resp. (Doc. 19) at 21-24.)
To ensure a party is not using a stipulation to avoid
removal, courts may look at whether the stipulation is binding
and whether the stipulation specifies that the plaintiff will
not only not seek but also “will not accept more than $75,000 if
the court awards it.” Aikens v. Microsoft Corp., 159 F. App’x
471, 476 (4th Cir. 2005) (unpublished).
Here, Plaintiffs did not specify in their Complaint the

exact sum of damages sought. However, they did include a
stipulation in their Complaint stating they would neither seek
nor accept damages exceeding $75,000. (Compl. (Doc. 5) at 9.)
Plaintiffs additionally included individual declarations with
their Motion for Remand stating that they were not presently
seeking, nor would they seek in the future, damages in excess of
$75,000. (Doc. 13-4 ¶ 16; Doc. 13-7 ¶ 11.)
Another court in this district has dealt with this same
fact pattern and determined that the stipulation in the
Complaint coupled with individual declarations was sufficient to
defeat federal jurisdiction. See Kellar v. 1st Cap. Fin. of

S. Carolina, Inc., 1:20CV402, at 5 (M.D.N.C. Mar. 30, 2021)
(Mem. Order). In Kellar, the plaintiffs sought to recover
compensatory and treble damages for the defendant’s alleged
violations of the North Carolina Consumer Finance Act, which
they alleged constituted unfair and deceptive trade practices in
violation of N.C. Gen. Stat. § 75-1.1, and in the alternative,
sought damages for violations of the North Carolina usury
statutes, N.C. Gen. Stat. § 24-1.1. Id. at 2. The plaintiffs in
Kellar included a stipulation in their complaint that they would
neither seek nor accept damages in excess of $75,000. Id. The
plaintiffs also attached declarations affirming their
stipulation. Id. at 3. Based on these facts, the court in Kellar

held that the “declarations – with the inclusion of affirmative
language that they will not accept over $75,000 – is sufficient
to defeat federal jurisdiction.” Id. at 5.
Like the plaintiffs in Kellar, Plaintiffs stipulated that
they would neither seek nor accept damages over $75,000. (Compl.
(Doc. 5) at 9.) Plaintiffs affirmed this stipulation through
declarations. (Docs. 13-4, 13-7.) Defendants argue that neither
Plaintiffs’ declarations nor the stipulation in the Complaint is
sufficient to defeat the jurisdictional threshold. (Defs.’ Resp.
(Doc. 19) at 21.) Specifically, Defendants argue that because
the declarations were filed after the Complaint, they are

irrelevant in light of Supreme Court precedent, and further
argue that the stipulation is non-binding. (Id. at 21-22.) Even
assuming the declarations bear no weight in assessing whether
the jurisdictional threshold is met, none of the cases cited by
Defendants are applicable to the facts of this case. Defendants
first cite Dash v. FirstPlus Home Loan Trust 1996-2 to support
their argument that Plaintiffs’ stipulation does not support
remand. Unlike this case, in Dash there was no stipulation in
the complaint that the plaintiffs would not accept a sum over
$75,000. Dash, 248 F. Supp. 2d 489, 495-96 (M.D.N.C. 2003)
(denying motion to remand where the complaint alleged that the
plaintiffs did not seek damages in excess of $75,000; however,

the complaint alleged damages of at least $95,423.71 sought).
Similarly, in the other case cited by Defendants, the plaintiffs
did not specifically allege they would not accept over $75,000.
Cannon v. AutoMoney, Inc., Case No. 1:19-cv-00877, 2020 WL
3105183, at *3 (M.D.N.C. May 12, 2020) (“[T]he Complaint
specifically provides that ‘[e]ach Plaintiff alleges as to their
individual claim that the matter in controver[s]y does not
exceed the sum or value of $75,000.00, exclusive of interest and
costs.’” (alteration in original)), report and recommendation
adopted, No. 1:19-CV-877, 2020 WL 3104352 (M.D.N.C. June 11,
2020). For these reasons, this court finds that the stipulation

that Plaintiffs “will not seek and will not accept damages in
excess of $75,000.00,” (Compl. (Doc. 5) at 9 (emphasis added)),
is sufficient to defeat federal jurisdiction.1 Accordingly, this
court will grant Plaintiffs’ Motion to Remand, (Doc. 12).
Because this court will grant Plaintiffs’ Motion to Remand, this
court will deny Defendants’ Motion to Transfer, (Doc. 15).
CONCLUSION
For the foregoing reasons,
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Remand,
(Doc. 12), is GRANTED and that this case is hereby REMANDED for
further proceedings in the Superior Court of Richmond County,

North Carolina.

1 Defendants further argue that “the addition of costs in
the form of attorneys’ fees would push the amount in controversy
to well over the $75,000.00 jurisdictional threshold.” (Defs.’
Resp. (Doc. 19) at 24.) While “[a]n award of attorneys’ fees can
be considered in determining the jurisdictional amount[,]. . .
the mere fact that [attorneys’ fees] are at issue is
insufficient . . . [to] propel the recovery over the $75,000
jurisdictional threshold.” Blettner v. Masick, No. 1:15CV474,
2015 WL 7575924, at *2 (M.D.N.C. Nov. 25, 2015) (internal
citations omitted). That Plaintiffs’ counsel would expend almost
400 hours on this case is nothing more than speculation by
Defendants, which is insufficient to establish jurisdiction. See
id. (See also (Doc. 19) at 26-27.) Defendants have filed
declarations of attorney’s fees of Plaintiffs’ counsel in other
related cases in an attempt to establish federal jurisdiction.
(Doc. 24.) None of those documents reflect that Plaintiffs’
counsel expended anywhere near 400 hours of work. (Docs. 24-1,
24-2, 24-3.) This court therefore finds that Defendants have not
met their burden of showing that the amount in controversy
exceeds $75,000.
IT IS FURTHER ORDERED that the Clerk of Court is directed
to send a certified copy of this Memorandum Opinion and Order to
the Clerk of Superior Court in Richmond County.
IT IS FURTHER ORDERED that Defendants’ Motion to Transfer,
(Doc. 15), is DENIED WITHOUT PREJUDICE.
This the 30th day of November, 2021.

*
Wy Uirm L. Blunt.
«United States District JudgA}

-11-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253921. Public record. Not legal advice.