United States District Court, W.D. Missouri, Southern Division
ORDER DENYING MOTION TO REMAND
ROSEANN A. KETCHMARK, JUDGE
the Court is Plaintiffs' James and Fredia Williamson
(“Plaintiffs”) Motion to Remand (“the
Motion”). (Doc. 11.) The Motion is fully briefed.
(Docs. 12, 15, 18.) After careful consideration and for the
reasons below, the Motion is DENIED.
January 10, 2019, Plaintiffs filed their Petition against
Defendants Wyndham Vacation Ownership, Inc. and Wyndham
Vacation Resorts, Inc. (“Defendants”) in the
Circuit Court of Taney County, Missouri. James Williamson
and Fredia Williamson v. Wyndham Vacation Ownership, Inc. and
Wyndham Vacation Resorts, Inc., No. 1946-CC00006. On
March 1, 2019, Defendants removed this action to this Court
on the basis of diversity of citizenship pursuant to 28
U.S.C. § 1332(a)(1). The Complaint alleges that on
October 10, 2017, and July 9, 2018, Defendants made false
representations to Plaintiffs in timeshare presentations to
convince Plaintiffs to purchase timeshare interests from
Defendants. The Complaint asserts two cause of action against
Defendants: (1) violation of the Missouri Merchandising
Practices Act (“MMPA”), RSMo. § 407.025; and
(2) fraudulent misrepresentation.
parties do not dispute that diversity of citizenship is
satisfied. At issue before this Court is whether Defendants
have shown the amount in controversy is satisfied by a
preponderance of the evidence, and if so, whether Plaintiffs
have shown, to a legal certainty, that the amount in
controversy cannot be met.
courts are courts of limited jurisdiction.” Ark.
Blue Cross & Blue Shield v. Little Rock Cardiology
Clinic, P.A., 51 F.3d 812, 816 (8th Cir. 2009). A party
may remove an action to federal court if there is complete
diversity of the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. §§ 1332(a) and 1441(a).
“[T]he amount in controversy is measured by the value
of the right that [plaintiff] seeks to protect or the value
of the object that is the subject matter of the suit.”
Churchill in Crestwood, LLC v. Schwartz, 2011 WL
7109212, at *4 (W.D. Mo. Jan. 27, 2011) (citing Neely v.
Consol, Inc., 25 Fed.Appx. 394, 400 (6th Cir. 2002)
(stating that where a plaintiff seeks to rescind a contract,
the contract's entire value is the amount in
controversy)). If the case does not fall within the district
court's original jurisdiction, the court must remand the
case to the state court from which it was removed. 28 U.S.C.
§ 1447(c). Removal statutes are construed against
removal and in favor of remand. Nichols v. Harbor
Venture, Inc., 284 F.3d 8857, 861 (8th Cir. 2002).
seeking removal and opposing remand carries the burden of
establishing federal subject matter jurisdiction by a
preponderance of the evidence. In re Prempro Prods. Liab.
Litig., 591 F.3d 613, 620 (8th Cir. 2010). “The
preponderance standard requires the moving party to present
some specific facts or evidence demonstrating that the
jurisdictional amount has been met such as responses to
discovery requests or damage recoveries in similar
cases.” Claxton v. Kum & Go, L.C., 2014 WL
6685816, at *2 (W.D. Mo. Nov. 26, 2014) (internal quotation
marks and citation omitted). “In computing the amount
in controversy, a removing party may include punitive damages
and statutory attorney fees.” Id. “Once
the removing party has established by a preponderance of the
evidence that the jurisdictional amount is satisfied, remand
is only appropriate if the plaintiff can establish to a legal
certainty that the claim is for less than the requisite
amount.” Id. at 3. A plaintiff cannot meet the
legal certainty standard if there is a possibility that the
jurisdictional amount will be satisfied. Id.
seek the following relief in their Complaint: compensatory
damages, recession of the timeshare agreements, reasonable
attorney's fees, and punitive damages. The parties agree
that Plaintiffs' actual damages are $51, 422.09. Next, as
to attorney's fees, Plaintiffs argue that even if a
one-third contingency fee arrangement was utilized, resulting
in $17, 138.98 in attorney's fees, the amount in
controversy would not be satisfied. However, Plaintiffs have
failed to factor a punitive damages award in this
their Complaint, Plaintiffs allege punitive damages are
appropriate because Defendants' acts were “willful,
wanton and in complete disregard of Plaintiffs'
rights.” (Doc. 1-1, ¶ 36.) Plaintiffs allege that
Defendants coerced and deceived Plaintiffs into purchasing a
timeshare by employing high pressure sales tactics, and
Defendants did not explain or disclose the specific terms and
rules of the timeshare until after the transaction was
completed. The Court finds a jury may find Defendants'
alleged conduct sufficient to award punitive
the Court has determined a jury may reasonably award punitive
damages, the Court will consider a punitive damages award in
the amount in controversy determination. In Lewellen v.
Franklin, the Supreme Court of Missouri held that juries
are given discretion to determine the amount of punitive
damages to award. 441 S.W.3d 136, 150 (Mo. banc 2014).
“[T]here is no mathematical formula applied to
determine punitive damages and they need not bear any
specific relationship to the actual damages received.”
Finley v. Empiregas, Inc. of Potosi, 975 F.2d 467,
473 (8th Cir. 1992). Defendants' briefing provides
similar MMPA cases with large punitive damages ratios as
compared with this case.Plaintiffs do not provide any case
authority in support of its punitive damages argument and
only conclusory allegations that the amount in controversy is
considering compensatory damages of approximately $51, 400
and attorney's fees of approximately $17, 100, a punitive
damages award of only $6, 439.93 or greater would satisfy the
amount in controversy. This amount represents only 12.5% of
the compensatory damages. Much higher percentages have been
found to be reasonable in other cases. “Assuming
Plaintiff's actual damages are probably less than $10,
000 . . . [t]he possibility of punitive damages and
attorney's fees, however, means that a fact finder could
legally conclude that Plaintiff's damages are greater
than $75, 000.” Dowell v. Debt Relief America,
L.P., 2007 WL 1876478, at *2 (E.D. Mo. June 27, 2007).
“Although the punitive damages awards in these [MMPA]
cases were made to a class, they show that juries are allowed
to assess large punitive damages awards in MMPA cases.”
Id; see also Muhammad v. Public Storage, 2014 U.S.
Dist. LEXIS 79778, at *3-4 (W.D. Mo. June 12, 2014) (the
court held an award of actual damages of $20, 000 was
sufficient to meet the amount in controversy when considering
the possibility of punitive damages and attorney's fees).
careful consideration, the Court finds Defendants have
established by a preponderance of the evidence the amount in
controversy requirement. Assuming Plaintiffs are successful,
their compensatory damages are approximately $51, 000.
Additionally, the possibility of punitive damages and
attorney's fees, leads a fact finder to legally conclude
that Plaintiffs' monetary recovery may exceed $75, 000.
Because the Court finds that Defendants have shown the amount
in controversy is satisfied, remand is only appropriate if
Plaintiffs show that, to a legal certainty, the amount in
controversy cannot be ...