UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) BEVERLY LYNN BARROW, ) Personal Representative of ) the Estate of Olga Welch,1 ) ) Civil Action No. 09-673 (EGS) v. ) ) HERCULES REAL ESTATE ) SERVICES, INC., ) ) Defendant. ) )

MEMORANDUM OPINION

Pending before the Court is plaintiff’s motion to remand

this case to the Superior Court for the District of Columbia

(“D.C. Superior Court”). Upon consideration of plaintiff’s

motion, the responses and reply thereto, the applicable law, the

entire record herein, and for the reasons stated below, this

Court GRANTS plaintiff’s motion for remand and DENIES plaintiff’s

request for attorneys fees and costs incurred in bringing this

motion.

I. BACKGROUND

Plaintiff Olga Welch filed this action in D.C. Superior

Court against defendant Hercules Real Estate Services, Inc.

(“Hercules”) on March 18, 2009. The action arises from a lengthy

landlord-tenant dispute regarding the care and maintenance of her

1 Pursuant to the Court’s Minute Order dated June 8, 2009, Ms. Barrow, as the personal representative of the Estate of Olga Welch, was substituted as the plaintiff in this action. two-bedroom apartment in northwest Washington, D.C. by

defendant. Plaintiff’s claims include breach of the implied

warranty of habitability, void lease, negligent infliction of

emotional distress, negligence and violations of housing

standards. Plaintiff is seeking an unspecified amount of damages

and other relief.

On April 10, 2009, defendant filed a Notice of Removal in

this Court. Defendant removed the action to this Court on the

basis of diversity jurisdiction pursuant to

.

See Docket No. 1, Notice of Removal. The pending motion to

remand was filed on May 8, 2009.

The day after the case was removed, Ms. Welch, who was

eighty-eight years old at the time the suit was filed, died

(hereinafter “Ms. Welch” or “decedent”). On April 21, 2009,

plaintiff’s counsel filed a statement with the Court noting the

death of Ms. Welch. See Docket No. 5. On May 22, 2009,

following D.C. Superior Court’s appointment of Beverly Lynn

Barrow – Ms. Welch’s daughter and power of attorney – as the

personal representative of the estate with powers that are not

limited, plaintiff’s counsel filed a motion to substitute parties

pursuant to Federal Rule of Civil Procedure 25(a)(1). Docket No.

11. This Court granted the motion to substitute parties on June

8, 2009. II. STANDARD OF REVIEW

“[A]ny civil action brought in a State court of which the

district courts of the United States have original jurisdiction,

may be removed by the defendant or the defendants, to the

district court of the United States for the district and division

embracing the place where such action is pending.”

(a). A district court has original jurisdiction of all civil

actions “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.”

§ 1332(a). “When a

plaintiff seeks to remand to state court a case that was removed

to federal court, ‘the party opposing a motion to remand bears

the burden of establishing that subject matter jurisdiction

exists in federal court.’” RWN Dev. Group, LLC v. Travelers

Indem. Co. of Conn.,

(D.D.C. 2008)

(quoting Int’l Union of Bricklayers & Allied Craftworkers v. Ins.

Co. of the West,

(D.D.C. 2005)).

“Because of the significant federalism concerns involved,

this Court strictly construes the scope of its removal

jurisdiction.” Breakman v. AOL, LLC,

(D.D.C. 2008)(citing Shamrock Oil & Gas Corp. v. Sheets,

(1941)). Therefore, “[a]ny doubts as to whether

federal jurisdiction exist must be resolved in favor of remand.”

RWN Dev. Group,

(citing cases); see also,

3 e.g., Breakman, 545 F. Supp. at 101 (“‘[I]f federal jurisdiction

is doubtful, a remand to state court is necessary.’” (quoting

Dixon v. Coburg Dairy, Inc.,

(4th Cir. 2003)

(en banc)); Johnson-Brown v. 2200 M St. LLC,

(D.D.C. 2003) (“Where the need to remand is not self-evident,

the court must resolve any ambiguities concerning the propriety

of removal in favor of remand.”). If the removing party cannot

meet its burden, the court must remand the case. See, e.g., Reed

v. Alliedbarton Sec. Servs., LLC,

(D.D.C.

2008); Johnson-Brown,

.

III. LEGAL ANALYSIS

A. Ms. Barrow Has Been Substituted for Ms. Welch as Plaintiff in this Action

As a threshold issue, defendant argues that the motion to

remand is not properly before the Court and should be stricken or

otherwise dismissed. Opp’n Br. at 4-6. Hercules argues that the

motion to remand was improperly filed because Ms. Welch was

deceased at the time of the filing and Ms. Barrow had not yet

been substituted as plaintiff.

While defendant is correct

in its assertion that at the time the motion to remand was filed

no party had yet been substituted for decedent, this has since

been remedied. On June 8, 2009, the Court granted plaintiff’s

motion to substitute parties. See June 8, 2009 Minute Order

(“Beverly Lynn Barrow, the power of attorney of Olga Welch, and

4 now, the personal representative of the Estate of Mrs. Olga Welch

(‘Mrs. Welch’) is substituted for Mrs. Welch as the plaintiff in

this action.”); see also Fed. R. Civ. P. 25(a)(1) (“If a party

dies and the claim is not extinguished, the court may order

substitution of the proper party.”). Accordingly, pursuant to

, Ms. Barrow may pursue this action on Ms.

Welch’s behalf. See

(“On the death of a

person in whose favor or against whom a right of action has

accrued for any cause prior to his death, the right of action,

for all such cases, survives in favor of or against the legal

representative of the deceased.”). In view of the fact that Ms.

Barrow has been substituted for the decedent as plaintiff in this

action,2 it would be a waste of judicial resources for the Court

to strike the motion to remand and order it to be refiled.

Therefore, in the interest of judicial economy, the Court will

address the underlying issue of subject matter jurisdiction,

which has been fully briefed by the parties and is properly

before the Court.3

2 Ms. Barrow has been an active participant in the litigation from the beginning. The complaint was signed by Ms. Barrow as “Power of Attorney of Olga Welch.” Compl. at 23. 3 The D.C. Circuit has instructed that “[w]hen it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case . . . .” Republic of Venezuela v. Philip Morris Inc.,

(D.C. Cir. 2002)(emphasis added)(citing

(c)). Having reviewed the record and determined that the Court lacks subject matter jurisdiction, this Court is obligated to remand the case to D.C. Superior Court. Cf. Reed,

5 B. Hercules Has Not Carried its Burden of Establishing that the Amount in Controversy Exceeds the Statutory Minimum of $75,000

Plaintiff argues that this case should be remanded to D.C.

Superior Court because defendant has failed to establish that the

amount in controversy in this action exceeds the statutory

minimum required by

(a).4 As the removing party,

defendant bears the burden of establishing that plaintiff’s

unspecified “compensatory damages” exceed $75,000, exclusive of

interests and costs. See, e.g., RWN Dev. Group,

(explaining that after a case is removed to federal court,

“the party opposing a motion to remand bears the burden of

establishing that subject matter jurisdiction exists in federal

court” (internal quotation marks omitted)).5

(sua sponte remanding a case upon its determination that the defendant had failed to establish that the amount in controversy exceeded $75,000). 4 Plaintiff does not challenge that diversity of citizenship exists in this action. The Court will therefore assume without deciding that this statutory requirement has been satisfied. 5 The D.C. Circuit has not yet addressed what standard the Court should apply in assessing the adequacy of a defendant’s showing that the amount-in-controversy requirement is satisfied when, as here, the plaintiff does not plead a specific amount of damages in the complaint. While some courts have required a defendant to show to a “legal certainty” that the amount in controversy exceeds $75,000, the more recent trend is to require the defendant to prove by a preponderance of the evidence that the statutory jurisdictional threshold is met. See generally 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3725 (discussing the “numerous different standards” that courts have employed to assess the adequacy of a defendant’s showing of amount in controversy and providing an exhaustive overview of cases). The Court need not choose between

6 Defendant first argues that the amount-in-controversy

requirement of

(a) is met because “if Ms. Welch

prevails on her claims, the amount of her recovery and the costs

of Hercules’ compliance with the judgment will, more likely than

not, exceed $75,000.00.” Opp’n Br. at 10. In support of this

argument, defendant relies on a settlement demand that plaintiff

submitted to Hercules a month before filing this action. See

Docket No. 8, Ex. E. In this demand (“Plaintiff’s Settlement

Demand”), plaintiff agreed to settle her claims for $50,628. See

Plaintiff’s Settlement Demand was based on Ms. Welch’s

alleged overpayment of rent for forty-nine months (totaling

$20,628), as well as $30,000 in compensatory damages “for the

costs of medical treatment for allergic rhinitis and vasomotor

rhinitis, the destruction of her personal property, the loss of

enjoyment of her apartment because of the conditions in her

apartment, and the physical and emotional distress she suffered.”

See

Defendant argues that even though Plaintiff’s Settlement

Demand was $24,372 less than the statutory minimum, the actual

amount in controversy is greater than $75,000 because plaintiff’s

complaint contains additional allegations that were not included

in Plaintiff’s Settlement Demand. Specifically, defendant argues

that: (i) “Ms. Welch’s lawsuit claims damages for alleged

injuries that continued at least until the date of filing, and

these different standards, however, because the Court finds that defendant has failed to satisfy its burden under either standard.

7 some of the alleged injuries were pled as continuing

indefinitely”; (ii) “Ms. Welch’s lawsuit includes claims for

items of damages that were not addressed in her settlement

agreement, specifically ‘costs incurred for inspections of the

property’ and ‘moving and storage costs’ and attorney’s fees”;

and (iii) “Ms. Welch’s lawsuit asks the Court to ‘enjoin Hercules

from further interference with Plaintiff’s use and enjoyment of

the Apartment.” Opp’n Br. at 11-12. None of these arguments

establishes that the amount in controversy is greater than

$75,000.

First, with respect to the continuing nature of plaintiff’s

claims, defendant has not provided the Court with a means by

which to estimate the cost of any “continuing injuries” suffered

by plaintiff. The fact that plaintiff requests compensatory

damages for “the personal injury and emotional distress Plaintiff

has and continues to suffer,” Compl. at 21, is insufficient to

establish that the amount in controversy is met. See Blue v.

Fremont Inv. & Loan,

(D.D.C. 2008)

(rejecting defendant’s argument that plaintiff’s request for

“unspecified damages for ‘mental anguish,’ ‘embarrassment,

humiliation and emotional distress,’ ‘statutory damages,’ among

fees, interest and treble damages” was sufficient to establish

that the amount-in-controversy requirement was met, stating that

8 “[t]he allegations provide the Court with no basis from which to

find an amount in controversy exceeds $75,000").

Second, with regard to plaintiff’s claims for damages that

were not addressed in Plaintiff’s Settlement Agreement, defendant

relies on an expert report which estimates these costs at $7,800.

See Opp’n Br. at 11-12. Assuming arguendo that this value is

accurate, defendant has still failed to establish that the amount

in controversy is greater than $75,000.

Third, with respect to injunctive relief, defendant has put

forth no evidence regarding what it would cost to repair

plaintiff’s apartment. See Wexler v. United Air Lines,

(D.D.C. 2007) (“The value of injunctive relief

for determining the amount in controversy can be calculated as

the cost to the defendant.”). Defendant’s self-serving,

conclusory statement that “the cost for effecting Ms. Welch’s

requested repairs . . . would more than exceed the amount in

controversy requirement for federal jurisdiction,” Opp’n Br. at

12, is simply insufficient to satisfy the statutory requirements

of

(a). See Wexler,

(characterizing the defendant’s statement that its compliance

with an injunction would cost more than $75,000 as a “non-

existent evidentiary showing” that was “insufficient to meet

[its] burden to establish the existence of federal subject matter

jurisdiction,” and explaining that the defendant should have

9 submitted supporting declarations or affidavits from its

employees estimating the cost of complying with plaintiff’s

requested relief); cf. Reed,

(defendant

failed to establish that the amount in controversy exceeded

$75,000, where the only evidence was an “unsubstantiated

allegation” that the plaintiff had made a settlement demand “well

in excess of $75,000”); RWN Dev. Group,

(“Although the defendant relies on the projection of the

plaintiffs’ in the Underlying Suits that their damages exceed

$75,000, absent any supporting evidence to substantiate the

asserted value of those claims reduces them to nothing more than

pure speculation.”).

Finally, defendant argues that the amount in controversy is

greater than $75,000 because plaintiff’s counsel was unwilling to

stipulate that the amount of damages sought by plaintiff was less

than $75,000. Opp’n Br. at 13-15. Hercules contends that

because plaintiff was unwilling to stipulate to the amount in

controversy, “it is clear that the amount in controversy exceeds

$75,000, exclusive of costs and interests.” Notice of Removal

Ex. 1, Decl. of C. Thomas Brown ¶ 7. The Court rejects this

circular logic. There are many reasons that a plaintiff would be

unwilling to stipulate that its damages were less than $75,000 –

particularly where, as here, discovery had not yet commenced.

Accordingly, plaintiff’s unwillingess to stipulate to the amount

10 in controversy does not satisfy a removing defendant’s burden to

establish that the amount in controversy exceeds $75,000. See,

e.g., Williams v. Best Buy Co.,

(11th Cir.

2001) (“[A] refusal to stipulate standing alone does not satisfy

[defendant]’s burden of proof on the jurisdictional issue.”);

Leys v. Lowe's Home Ctrs., Inc.,

(W.D.

Mich. 2009) (“‘Since a defect in subject matter jurisdiction

cannot be stipulated to or waived, attempting to force the

plaintiff to enter a stipulation regarding the potential amount

of damages would serve no effect in determining the actual amount

in controversy at the time of removal. The burden is on

defendants, not the plaintiff, to prove the amount in

controversy. If the Court were to conclude that a plaintiff’s

refusal to stipulate is sufficient to satisfy that burden,

defendants in every removal dispute would force the plaintiffs to

choose between stipulating against their future remedies and

remaining in federal court.’” (quoting Dobson v. United Airlines,

Inc., No. 02-cv-04771,

(N.D. Cal.

Nov. 25, 2002))).

In sum, because the Court must resolve any ambiguities

concerning the propriety of removal in favor of remand, defendant

has failed to provide this Court with sufficient evidence to

determine that the amount in controversy exceeds the statutory

minimum required by

(a). Consequently, this

11 Court lacks subject matter jurisdiction. Plaintiff’s motion to

remand is therefore GRANTED.

C. Plaintiff’s Request for Attorneys Fees and Costs is Denied

Under

(c), a court “may require payment of

just costs and any actual expenses, including attorney fees,”

when an action is remanded. Plaintiff argues that such costs

should be awarded because Hercules’ failure to prove to a “legal

certainty” that the amount in controversy exceeds $75,000, “is

contrary to well-settled authority and lacks any legal basis.”

Mot. for Remand at 7-8; see Johnson-Brown,

(explaining that costs and expenses may be awarded if “the

removing party contradicts well-settled law in attempting to

remove the case to federal court”). In her reply brief, however,

plaintiff concedes that “the D.C. Circuit has not specifically

addressed the standard of proof the defendant must satisfy” and

admits that there is a Circuit split on the issue. Reply Br. at

3; see also supra n.4. Hercules’ removal was therefore not in

contradiction to “well-settled authority.” The Supreme Court has

also counseled that “absent unusual circumstances, attorney’s

fees should not be awarded when the removing party has an

objectively reasonable basis for removal.” Martin v. Franklin

Capital Corp.,

(2005)(affirming decision not to

award attorneys fees pursuant to § 1447(c)). Although defendant

failed to put forth sufficient evidence to support its removal,

12 the Court concludes that an award of attorneys fees and costs is

not warranted under the circumstances of this case. Accordingly,

Plaintiff’s request for attorneys fees and costs is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS

plaintiff’s motion to remand this action to D.C. Superior Court,

where the case commenced. The Court DENIES plaintiff’s request

for attorneys fees and costs. An appropriate Order accompanies

this Memorandum Opinion.

SIGNED: Emmet G. Sullivan United States District Court Judge July 24, 2009

13