Lane v. Gray Transportation, Inc .

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

KENNETH RICHARD LANE,

Plaintiff,

v. CIVIL ACTION NO. 2:20-CV-40

(KLEEH)

GRAY TRANSPORTATION, INC., and

HIRERIGHT, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFF’S MOTION TO REMAND [ECF NO. 10]

Pending before the Court is Plaintiff’s Motion to Remand [ECF

No. 10]. Plaintiff filed the Motion to Remand pursuant to 28 U.S.C.

§ 1446(a), and moves to remand the case to the Circuit Court of

Lewis County, West Virginia, alleging that Defendants have failed

to satisfy their burden of proving the $75,000.00 amount in

controversy requirement because Plaintiff filed a binding

stipulation that the amount in controversy is less than $75,000.00.

Id. For the reasons discussed herein, the Motion is DENIED.

I. PROCEDURAL HISTORY

On August 20, 2020, Plaintiff Kenneth Richard Lane

(“Plaintiff” or “Lane”) filed a Complaint against the Defendants,

HireRight, LLC (“HireRight”), and Gray Transportation, Inc.,

(“Gray”) (collectively, “Defendants”) in the Circuit Court of

Lewis County, West Virginia. [ECF No. 1-1, Compl.]. Plaintiff’s

Summons and Complaint was served on Defendants on August 20, 2020,

by certified mail, service accepted by the Secretary of State as

the statutory attorney-in-fact on behalf of both “unauthorized

foreign corporations.” [ECF No. 1, Notice of Removal, ¶ 2; ECF No.

1-1, Docket Entries, Letter from the Secretary of State]. On

September 21, 2020, Defendants timely filed a Notice of Removal

from the Circuit Court and served a copy of the Notice of Removal

on Plaintiff. [ECF No. 1, Notice of Removal; ECF No. 1-2, Notice

of Filing of Notice of Removal].

This Court entered a First Order and Notice Regarding

Discovery and Scheduling on September 21, 2020. [ECF No. 2]. On

September 28, 2020, HireRight and Plaintiff filed a stipulation

enlarging HireRight’s time to answer or otherwise respond to

Plaintiff’s Complaint. [ECF No. 3]. On September 28, 2020, Gray

filed a Motion to Dismiss. [ECF No. 6]. HireRight filed a Motion

to Dismiss on October 12, 2020. [ECF No. 9]. Plaintiff then filed

a Motion to Remand on October 21, 2020. [ECF No. 10]. Finally,

HireRight filed a Motion to Strike Plaintiff’s untimely response

to motion to dismiss. [ECF No. 19].

Defendants filed a Joint Response in Opposition to

Plaintiff’s Motion to Remand on November 4, 2020. [ECF No. 23]. No

reply brief was filed. The Motion to Remand is the subject of this

Memorandum Opinion and Order.

II. GOVERNING LAW

When an action is removed from state court, the district court

must determine whether it has original jurisdiction over the

plaintiff’s claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). “Federal courts are courts of limited

jurisdiction. They possess only that power authorized by

Constitution and statute, which is not to be expanded by judicial

decree[.]” Id. (citations omitted). “Because removal jurisdiction

raises significant federalism concerns, we must strictly construe

removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29

F.3d 148, 151 (4th Cir. 1994) (citation omitted).

District courts have original jurisdiction of “civil actions

arising under the Constitution, laws, or treaties of the United

States” and “where the matter 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. §§ 1331, 1332(a)(1).

Where “the district courts have original jurisdiction, the

district courts shall [also] have supplemental 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.”

28 U.S.C. § 1367(a).

A. Federal Question - 28 U.S.C. § 1331

Removal may be proper when a “civil action brought in a State

court of which the district courts of the United States have

original jurisdiction.” 28 U.S.C. § 1441. Where a federal statute

creates the cause of action, the courts of the United States have

federal subject matter jurisdiction over the case because it is

deemed to be “arising under” federal law. Merrell Dow Pharm. Inc.

v. Thompson, 478 U.S. 804, 808 (1986). The determination of whether

a case arises under federal law is resolved within the four corners

of a complaint. Id. A “suit arises under the law that creates the

cause of action.” Id. (quoting Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). A plaintiff “may

avoid federal jurisdiction by relying exclusively on state law.”

Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1261

(4th Cir. 1989).

The Fair Credit Reporting Act (“FCRA”) is a federal law passed

by the United States Congress. 15 U.S.C. § 1681 et seq. “An action

to enforce any liability created under this subchapter may be

brought in any appropriate United States district court, without

regard to the amount in controversy, or in any other court of

competent jurisdiction.” Id. at § 1681p. District courts do not

have exclusive jurisdiction over actions involving the violation

of the Fair Credit Reporting Act; instead, the FCRA grants

concurrent jurisdiction to both federal and state courts. Id.

B. Diversity - 28 U.S.C. § 1332

When a party seeks to remove a case based on diversity of

citizenship, that party bears the burden of establishing that “the

matter in controversy exceeds the sum or value of $75,000,

exclusive of interests and costs, and is between citizens of

different states[.]” 28 U.S.C. § 1332. Generally, § 1332 requires

complete diversity among parties, which means that the citizenship

of all defendants must be different from the citizenship of all

plaintiffs. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

It is required that an action “be fit for federal adjudication

at the time the removal petition is filed.” See 28 U.S.C. §

1441(a); Moffitt v. Residential Funding Co., LLC, 604 F.3d 156,

159 (4th Cir. 2010) (quoting Caterpillar Inc., 519 U.S. at 73). If

the complaint does not contain a specific amount in controversy

and the defendant files a notice of removal, “the defendant bears

the burden of proving that the claim meets the requisite

jurisdictional amount,” and “the court may consider the entire

record” to determine whether that burden is met. Elliott v. Tractor

Supply Co., No. 5:14CV88, 2014 WL 4187691, at *2 (N.D.W. Va. Aug.

21, 2014) (citation omitted).

If the defendant sufficiently proves by a preponderance of

the evidence that the amount in controversy exceeds $75,000 and

the parties are diverse, then removal is proper. Dart Cherokee

Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553–54 (2014).

“[A]bsent a binding stipulation signed by [the plaintiff] that he

will neither seek nor accept damages in excess of $75,000, the

Court must independently assess whether the defendant[] ha[s]

proven by a preponderance of the evidence that

[the] . . . complaint seeks damages in excess of $75,000.” Virden

v. Altria Group, Inc., 304 F. Supp. 2d 832, 847 (N.D.W. Va. 2004).

The determination of whether the amount in controversy is satisfied

is left to the Court’s “common sense.” Mullins v. Harry’s Mobile

Homes, Inc., 861 F. Supp. 22, 24 (S.D.W. Va. 1994). Where diversity

jurisdiction is doubtful, remand is required. Maryland Stadium

Authority v. Ellerbe Becket Incorporated, 407 F.3d 225, 260 (4th

Cir. 2005).

A binding stipulation as to the amount in controversy prevents

removal if “a formal, truly binding, pre-removal stipulation [is]

signed by counsel and his client explicitly limit[s] recovery.”

McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481, 485 (S.D. W. Va. 2001)

(citing Hicks v. Herbert, 122 F. Supp. 2d 699, 701 (S.D. W. Va.

2000)). “The requirement of a ‘formal’ stipulation is satisfied

when the stipulation is signed and notarized.” Taylor v. Capital

One Bank (USA), N.A., No. 5:09-CV-00576, 2010 WL 424654, at *2

(S.D. W. Va. Feb. 4, 2010) (citing Hamilton, Burgess, Young &

Pollard, PLLC v. Markel American Ins. Co., 2006 WL 218200 at *2

(S.D. W. Va. Jan. 25, 2006)). In addition, “[t]he stipulation

should be filed contemporaneously with the complaint, which also

should contain the sum-certain prayer for relief.” McCoy, 147 F.

Supp. 2d at 486 (citing De Aguilar v. Boeing Co., 47 F.3d 1404,

1412 (5th Cir. 1995)). Further, “only a binding stipulation that

[Plaintiff] would not seek nor accept more than $75,000” can limit

potential recovery. Virden v. Altria Grp., Inc., 304 F. Supp. 2d

832, 847 (N.D.W. Va. 2004).

Venue is proper in the district under 28 U.S.C. § 1441(1)

when it embraces the place where the state court action was filed

and remains pending. The Notice of Removal is timely if it is filed

within thirty (30) days of service of Plaintiff’s Complaint and

Summons. 28 U.S.C. § 1446(b)(3). Under 28 U.S.C. 1446(a),

Defendants are required to attach all process, pleadings, and

orders on file in the state court action. Consent or joinder of

all defendants is required when an action is removed under §

1441(a).

The four corners of Plaintiff’s Complaint inform the Court if

the jurisdictional requirements are satisfied. Plaintiff does not

contest the parties’ diversity of citizenship in his Motion to

Remand. Plaintiff does, however, argue that Defendants have failed

to show that (1) this Court has federal jurisdiction under any

“federal question” and (2) the amount in controversy exceeds

$75,000.00. [ECF No. 10 at 3].

III. THE COMPLAINT

Plaintiff Kenneth Richard Lane (“Plaintiff” or “Lane”) brings

claims of discrimination and wrongful termination. He also alleges

that Defendant Gray Transportation, Inc., (“Gray”) violated the

Wage Payment and Collection Act and that Defendant HireRight, LLC,

(“HireRight”) engaged in unfair practices under the Fair Credit

Reporting Act.

Plaintiff was born on January 18, 1953 and was an experienced

and licensed “over the road truck driver.” ECF No. 1-1, Compl., ¶¶

5, 6. In July 2018, Plaintiff was hired by Gray as an over the

road truck driver. Id. at ¶ 5. Throughout the employment

relationship, Plaintiff “met applicable job qualifications, was

qualified for the position which he held, and performed the job in

a manner which fully met any legitimate expectations of the

defendant.” Id. at ¶ 13. Gray provided Plaintiff with a tractor

and one or more trailers to perform his job duties. Id. at ¶ 23.

He alleges the equipment was in an unsafe condition. Id. at ¶ 23.

Plaintiff further alleges he was terminated because of his

age and “upon his refusal to operate equipment in the course and

scope of his employment” because it was unsafe to do so. Id. at ¶¶

15, 16. Plaintiff asserts discrimination and ill treatment by Gray

and was given no legitimate basis for Gray’s alleged wrongful

conduct. Id. at ¶¶ 12, 17. As a result of the termination in

violation of West Virginia Code § 5-11-1 et seq., Plaintiff has

suffered “losses of earnings, and has suffered and continues to

suffer humiliation, embarrassment, mental pain and anguish.” Id.

at ¶¶ 20, 21. Plaintiff also seeks all wages and salary for

services performed for Gray under West Virginia Code § 21-5-4(b).

Id. at ¶¶ 32-34.

Plaintiff also alleges that Gray failed to notify him in

writing that he would be subject to a consumer credit report

prepared by a consumer reporting agency, Defendant HireRight, LLC

(“HireRight”). Id. at ¶ 49. HireRight, an alleged consumer

reporting agency as defined by the Fair Credit Reporting Act,

provided a consumer report concerning Plaintiff to Gray, which was

“inaccurate, misleading, and incomplete.” Id. at ¶¶ 38-40. The

report contained inaccuracies that negatively impacted Plaintiff

and he seeks “a statutory penalty from the defendants as well as

attorney’s fees, litigation costs and all other permitted damages.

Id. at ¶¶ 50-52.

To satisfy West Virginia Circuit Court’s jurisdictional

threshold, Plaintiff alleges the amount in controversy, excluding

interest, exceeds $7,500.00. Id. at ¶ 8. However, he goes on to

allege the “total damages sought by the plaintiff, inclusive of

all interest, costs, attorney fees and punitive damages does not

exceed $75,000.00. Attached [to the Complaint] is the Stipulation

of Plaintiff and Attorney for Plaintiff, confirming that the total

amount of damages sought by the plaintiff inclusive of all

interest, costs, attorney’s fees and punitive damages does not

exceed $75,000.00.” Id. at ¶ 52.

The “Stipulation of Plaintiff and Attorney for Plaintiff”

stipulates that “plaintiff shall not accept an amount greater than

$75,000.00 in this case, including any award of attorney fees, but

excluding interest and costs.” [ECF No. 1-1, Stipulation of

Plaintiff and Attorney for Plaintiff]. The document is attested by

both Plaintiff and his counsel and is notarized. Id.

The Complaint alleges the following causes of action:

1) Discrimination / Wrongful Termination against Defendant

Gray Transportation, Inc.

2) Wage Payment against Defendant Gray Transportation, Inc.

3) Unfair Practices against Defendant HireRight, LLC.

Compl., ECF No. 1-1.

IV. DISCUSSION

Removal is timely because the Notice of Removal was filed on

September 21, 2020, 30 days within Defendants’ receipt of

Plaintiff’s Complaint and Summons. 28 U.S.C. § 1446(b). The Court

analyzes Plaintiff’s Complaint and Defendants’ removal papers for

federal question jurisdiction under § 1331 and diversity

jurisdiction under § 1332, in turn.

A. Federal Question Jurisdiction Exists on Plaintiff’s FCRA

Claim against HireRight.

When determining whether removal is proper, the Court must

first determine whether it has original jurisdiction over the

Plaintiff’s claims. District courts have original jurisdiction to

hear cases where “a federal question is presented on the face of

the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

Williams, 482 U.S. at 392. Here, Plaintiff pleaded one claim under

federal law on the face of his complaint in Count III by alleging

that Defendant HireRight violated provisions of the Fair Credit

Reporting Act, a federal statute. ECF No. 1-1, Compl., ¶¶ 36-51.

The only cause of action alleged against HireRight is violations

of the FCRA. As Defendants point out, the FCRA, by its terms,

grants concurrent jurisdiction to both federal and state courts.

15 U.S.C. § 1681p (“An action to enforce any liability created

under this subchapter may be brought in any appropriate United

States district court, without regard to the amount in controversy,

or in any other court of competent jurisdiction.”) ECF No. 23 at

5. Preemption is not argued by Plaintiff or Defendants; instead,

Plaintiff reports that even if the FCRA preempts state law, this

does not provide a sole basis for removal, and Defendants reject

any preemption defense, arguing that this is not a preemption case

because the only claim Plaintiff pleaded against HireRight was

violations of the FCRA. ECF No. 10 at 7, ECF No. 23 at 6; see also

Rule v. Ford Receivables, Inc., 36 F.Supp.2d 335, 338-39 (S.D.W.

Va. 1999) (analyzing Harper v. TRW, 881 F.Supp. 294 (E.D. Mich.

1995) and holding that the FCRA’s “preemptive force is not so

‘extraordinary’ as to constitute complete preemption”).1 Because

Plaintiff pleaded a federal claim on the face of his complaint,

federal jurisdiction exists as to that claim. 28 U.S.C. § 1331.

Satisfied that “[t]he federal claim has substance sufficient

to confer subject matter jurisdiction on the court,” the Court

must turn to the question of supplemental jurisdiction over the

remaining claims. United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 725 (1966).

The state and federal claims must derive from

a common nucleus of operative fact. But if,

considered without regard to their federal or

state character, a plaintiff’s claims are such

that he would ordinarily be expected to try

them all in one judicial proceeding, then,

assuming substantiality of the federal issues,

there is power in federal courts to hear the

whole. That power need not be exercised in

every case in which it is found to exist. It

has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not

of plaintiff's right. Its justification lies

in considerations of judicial economy,

convenience and fairness to litigants; if

these are not present a federal court should

hesitate to exercise jurisdiction over state

claims, even though bound to apply state law

to them, Erie R. Co. v. Tompkins, 304 U.S. 64,

58 S. Ct. 817, 82 L. Ed. 1188.

1 Moreover, to the extent Plaintiff argues concurrent jurisdiction

does not permit remand, that argument is without basis. FCRA

jurisdiction is not exclusive to either federal or state courts.

Given that jurisdiction clearly lies in this district court,

Plaintiff is not entitled to remand simply because the Circuit

Court of Lewis County, West Virginia is likewise legally empowered

to do so as well. See Callison v. Charleston Area Medical Center,

Inc., 909 F.Supp. 391, 394 (S.D.W. Va. 1995) (“The existence of

concurrent jurisdiction does not require remand.”)

Id.

Regarding the state law claims made by Plaintiff against

Defendant Gray, these claims may be appropriately brought in

federal court so long as the state claims are so related to the

federal law claims that they create the “same case or controversy

under Article III of the United States Constitution.” 28 U.S.C. §

1367. The Plaintiff’s state law claims — violation of West Virginia

Code § 5-11-1 et seq. (Count I: Discrimination / Wrongful

Termination) and violation of West Virginia Code § 21-5-1 et seq.

(Count II: Wage Payment) — are so related to the same alleged

conduct by the same Defendants as described in Plaintiff’s federal

claim. The claims implicate the employment relationship and

matters that allegedly occurred during Plaintiff’s tenure. The

interests of judicial economy, efficiency and fairness to the

litigants outweigh the federalism concerns present. Therefore,

this Court can and will exercise its supplemental jurisdiction

over the state law claims in Plaintiff’s Complaint. 28 U.S.C. §

1367(a).

B. Diverse Citizenship Exists Among the Parties.

All parties agree that each has diverse citizenship.

Plaintiff is a resident of the State of West Virginia and is

therefore a citizen of the State of West Virginia for purposes of

diversity jurisdiction. ECF No. 1, Notice of Removal, ¶ 10. Gray

Transportation, Inc., is a citizen of the State of Iowa because it

is incorporated under the laws of Iowa and designates its principal

place of business in Waterloo, Iowa. Id. at ¶ 11. HireRight, LLC,

is a citizen of every state in which its owners or members are

citizens. Gen. Tech. Applications, Inc., v. Exro Ltda, 388 F.3d

114, 121 (4th Cir. 2004). It is organized under the laws of the

State of Delaware with a principal place of business in Oklahoma.

ECF No. 1, Notice of Removal, ¶ 12. The sole member of HireRight

is Corporate Risk Holdings, LLC, and is not a West Virginia

citizen. Id. The sole member of Corporate Risk Holdings, LLC, is

Corporate Risk Acquisition, LLC, and is also not a West Virginia

citizen. Id. Finally, the sole member of Corporate Risk

Acquisition, LLC, is Corporate Risk Holdings III, Inc., and is not

a West Virginia citizen. Id. Therefore, complete diversity exists

among the parties.

C. Plaintiff’s Stipulation Fails and the Amount in Controversy

is Satisfied by a Preponderance of the Evidence; Therefore,

Plaintiff’s Motion to Remand Must Be Denied.

1. Plaintiff’s Stipulation is Missing Two Requirements

Defendants argue that Plaintiff’s pre-removal stipulation

filed with the Complaint falls short of the requirements necessary

to avoid federal court. [ECF No. 23 at 7]. Again, the “Stipulation

of Plaintiff and Attorney for Plaintiff” stipulates that

“plaintiff shall not accept an amount greater than $75,000.00 in

this case, including any award of attorney fees, but excluding

interest and costs.” [ECF No. 1-1, Stipulation of Plaintiff and

Attorney for Plaintiff].

Plaintiff’s stipulation was filed pre-removal and

contemporaneously with the Plaintiff’s Complaint. The stipulation

was signed by counsel and by Plaintiff. The stipulation would be

valid, binding and effective to preclude removal, but for the

absence of two things: a sum-certain prayer for relief in

Plaintiff’s Complaint and language indicating that Plaintiff would

not seek any amount in excess of $75,000.00.

Plaintiff’s complaint does not “contain the sum-certain

prayer for relief” required by federal courts in this state. McCoy,

147 F. Supp. 2d at 486. Instead, the “total damages sought by the

plaintiff, inclusive of all interest, costs, attorney fees and

punitive damages does not exceed $75,000.00.” ECF No. 1-1, Compl.,

¶ 52. Neither does the stipulation contain language “that

[Plaintiff] would not seek nor accept more than $75,000” in order

to limit Plaintiff’s potential recovery and avoid removal. Virden

v. Altria Grp., Inc., 304 F. Supp. 2d 832, 847 (N.D.W. Va. 2004)

(emphasis added).

Accordingly, the Court finds that Plaintiff’s stipulation,

standing alone, does not require remand. See Bailey v. SLM Corp.,

No. 5:11-cv-00715, 2012 WL 1598059, at *5 (S.D.W. Va. May 7, 2012)

(“Plaintiff failed to include a sum-certain prayer of relief in

her complaint. . . . In light of this omission, Plaintiff’s

stipulation does not conform to the standard discussed in McCoy

and would not be effective to defeat diversity jurisdiction.”);

Virden, 304 F. Supp. at 847 (“absent a binding stipulation signed

by [Plaintiff] that he will neither seek nor accept damages in

excess of $75,000, the Court must independently assess whether the

defendants have proven by a preponderance of the evidence that

[Plaintiff’s] complaint seeks damages in excess of $75,000”).

However, the Court’s analysis does not stop here.

2. Defendants Show by a Preponderance of the Evidence

Damages in Excess of $75,000.00.

A notice of removal may establish the amount in controversy.

28 U.S.C. § 1446(c)(2). When a complaint does not contain a

specific amount in controversy and the defendant files a notice of

removal, “the defendant bears the burden of proving . . . [the]

jurisdictional amount,” and “the court may consider the entire

record” to determine whether that burden is met. Elliott v. Tractor

Supply Co., No. 5:14CV88, 2014 WL 4187691, at *2 (N.D.W. Va. Aug.

21, 2014) (citation omitted). Defendants convincingly argue the

Plaintiff is seeking damages arising from multiple violations of

discrimination and wrongful termination stemming from the Human

Rights Act and West Virginia Wage Payment and Collect Act. There

remains little doubt that the total amount in controversy overcomes

the excess of $75,000.00 requirement under 28 U.S.C. § 1332.

Indeed, Defendants argue that the damages available under the

West Virginia Human Right Act include back pay, front pay,

injunctive relief, reinstatement, attorneys’ fees and litigation

expenses, and any other legal or equitable relief that the court

may award. See W. Va. Code § 5-11-13; see also Dobson v. Eastern

Associated Coal Corp., 422 S.E.2d 494, 502 (W. Va. 1992). Further,

damages for “humiliation, embarrassment, mental pain, and anguish”

are pleaded in Plaintiff’s Complaint under Count I. Compl., ¶¶ 9-

29.

Punitive damages are an available award under the Human Rights

Act. See Hayes v. Rhone-Poulenc, Inc., 521 S.E.2d 331 (W. Va.

1999). “A good faith claim for punitive damages may augment

compensatory damages in determining the amount in controversy

unless it can be said to a legal certainty that plaintiff cannot

recover punitive damages in the action.” Hicks v. Herbert, 122 F.

Supp.2d 699, 701 (S.D.W. Va. 2000) (citation omitted). West

Virginia law permits recovery of punitive damages where clear and

convincing evidence demonstrates “the defendant [acted] with

actual malice toward the plaintiff or a conscious, reckless and

outrageous indifference to the health, safety and welfare of

others.” W. Va. Code § 55-7-29(a). The West Virginia Legislature

has limited the recovery of punitive damage awards within the state

– “[t]he amount of punitive damages that may be awarded in a civil

action may not exceed the greater of four times the amount of

compensatory damages or $500,000, whichever is greater.” Id.

Despite these caps, a request for punitive damages certainly looms

large in assessing whether the jurisdictional amount in

controversy is satisfied. “[A] request for punitive damages, where

properly recoverable, inevitably inflates a plaintiff's potential

recovery.” Bryant v. Wal-Mart Stores E., Inc., 117 F.Supp.2d 555,

556 (S.D.W. Va. 2000). Here, punitive damages appear “properly

recoverable” based on the allegations in the Complaint and,

therefore, must be considered at this stage.

Plaintiff, of course, is master of his Complaint. His various

damages allegations certainly push the amount in controversy above

the jurisdictional threshold. There are the aforementioned

repeated allegations of “losses of earnings, and . . . humiliation,

embarrassment, mental pain and anguish.” Compl., ¶ 20. With

respect to FCRA, Plaintiff alleges Hireright acted in a “negligent

and/or reckless as well as willful and done in a deliberate or

reckless disregard of the obligations” it owed Plaintiff.” Compl.,

¶ 48. Plaintiff seeks an array of damages including punitive

damages. Compl., ¶ 52.

Certainly, from a clear reading of the Complaint, Plaintiff

could be entitled to seek two-years’ worth of unpaid wages and

unpaid accrued fringe benefits under Count II. W. Va. Code § 21-

5-4. Liquidated damages are also available under the West Virginia

Wage Payment and Collect Act. Id. at § 21-5-4(e). Defendants

calculate Plaintiff’s yearly salary to be $48,400.00, which, by

itself, overcomes the $75,000.00 threshold, because Plaintiff’s

employment was terminated in summer 2018 and suit was filed in

August 2020. ECF No. 1, Notice of Removal; see, e.g., Shumate v.

DynCorp Int’l, No. 5:11-cv-00980, 2012 WL 830241, *1, *4 (S.D.W.

Va. March 9, 2012) (salary earnings between termination and suit

filed contributed to amount-in-controversy assessment). Finally,

each statute at issue in the Complaint provides for the right to

attorneys’ fees, which are considered as part of the amount-in-

controversy assessment. See Bartnikowski v. NVR, Inc., No. 09–

1063, 307 Fed.Appx. 730, 736 n.12 (4th Cir. 2009).

Because this Court is required to use “common sense” in

determining the amount in controversy, see Mullins, 861 F. Supp.2d

at 847, and in using Plaintiff’s allegations contained in the

Complaint and Defendants’ calculations provided in the Notice of

Removal, it finds by a preponderance of the evidence that

Plaintiff’s damages are in excess of the amount in controversy

requirement. Plainly, Defendants have sustained their burden and

thus diversity jurisdiction exists. Because Defendants proved by

a preponderance of the evidence the amount in controversy exceeds

$75,000.00, the Court DENIES Plaintiffs’ Motion to Remand. [ECF

No. 10].

V. CONCLUSION

For the reasons discussed above, the Motion to Remand is

DENIED [ECF No. 10].

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record.

DATED: September 20, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE