United States District Court, D. South Carolina, Aiken Division
AMENDED ORDER AND OPINION
matter is before the court pursuant to Plaintiff Tyrone
Mosely's ("Plaintiff") Motion to Remand the
case to the Barnwell County (South Carolina) Court of Common
Pleas. (ECF No. 10). Defendant Quicken Loans, Inc.
("Defendant"), opposes Plaintiff's Motion to
Remand and asks the court to retain jurisdiction. (ECF No.
12). For the reasons set forth below, the court DENIES
Plaintiff's Motion to Remand.
RELEVANT BACKGROUND OF PENDING MOTION
November 11, 2015, Plaintiff filed a complaint for a non-jury
trial in the Court of Common Pleas in Barnwell County, South
Carolina. (ECF No. 1-1 at 7). Plaintiff alleges that he
obtained a real estate loan with Defendant. (Id. at
7 ¶ 5). Plaintiff further alleges that pursuant to South
Carolina law, Defendant was required to determine
Plaintiff's preference for legal counsel to assist him
during the closing of the transaction. (Id. at 7
¶ 6). Plaintiff alleges that Defendant provided him with
a pre-populated Attorney/Insurance Preference Checklist,
which prevented Plaintiff from choosing an attorney to
represent him in the transaction. (Id. at 8
¶¶ 11-13). According to Plaintiff, the deprivation
of a meaningful choice as to the attorney to represent him in
the transaction was unconscionable pursuant to S.C. Code Ann.
§§ 37-10-105 (2016), 37-5-108 (2016). (Id.
at 8 ¶14). Plaintiff requests that the court issue an
order and grant relief pursuant to S.C. Code Ann. §
37-10-105(c). (Id. at 9 ¶ 23). Plaintiff
further requests that the court assess a statutory penalty
between $1, 500.00 and $7, 500.00. (Id. at 9 ¶
24). Plaintiff also asserts that he is entitled to
attorney's fees and costs from Defendant as permitted by
statute. (Id. at 9 ¶ 25). For jurisdictional
purposes, Plaintiff alleged that he is a citizen of the state
of South Carolina; and Defendant is a corporation organized
under the laws of a state other than the state of South
Carolina with a principal place of business in
Michigan. (ECF No. 1-1 at 7 ¶¶ 1, 2).
Plaintiff did not specify an amount of damages in the
Complaint, but prayed "for the relief set forth above,
for attorney fees and the costs of this action, and for such
other and further relief as this court deems just and proper,
but in no event, for an amount greater than Seventy-Five
Thousand Dollars ($75, 000)." (Id. at 10).
February 8, 2016, Defendant filed a Notice of Removal
asserting that the court possessed jurisdiction over the
matter because complete diversity of citizenship exists
between the parties and the amount in controversy requirement
is met. (ECF No. 1 at 2). Thereafter, on March 9, 2016,
Plaintiff moved the court to remand the matter to state court
on the basis "that the amount in controversy does not
exceed $75, 000.00 as required under 28 U.S.C. §
1332(a)(1)." (ECF No. 10). Plaintiff also moved the
court to stay all matters related to Defendant's Motion
to Dismiss. (ECF No. 9). On March 28, 2016, Defendant filed a
response in opposition to Plaintiff's Motion to Remand.
(ECF No. 12). Plaintiff filed a Reply in Support of the
Motion to Remand and Opposition to Defendant's Notice of
Removal on April 7, 2016. (ECF No. 13).
courts are courts of limited jurisdiction. A defendant is
permitted to remove a case to federal court if the court
would have had original jurisdiction over the matter. 28
U.S.C. § 1441(a) (2012). A federal 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 - (1)
citizens of different States; . . . ." 28 U.S.C. §
1332(a) (2012). In cases in which the district court's
jurisdiction is based on diversity of citizenship, the party
invoking federal jurisdiction has the burden of proving the
jurisdictional requirements for diversity jurisdiction.
See Strawn v. AT & T Mobility LLC, 530 F.3d 293, 298
(4th Cir. 2008) (holding that in removing case based on
diversity jurisdiction, party invoking federal jurisdiction
must allege same in Notice of Removal and, when challenged,
demonstrate basis for jurisdiction).
determining the amount in controversy for federal diversity
jurisdiction, the court must examine the complaint at the
time of removal. Thompson v. Victoria Fire & Casualty
Co., 32 F.Supp.2d 847, 848 (D.S.C. 1999) (citing St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
292 (1938)). Generally, "the sum claimed by a plaintiff
in her complaint determines the jurisdictional amount, and a
plaintiff may plead less than the jurisdictional amount to
avoid federal jurisdiction." Phillips v. Whirlpool
Corp., 351 F.Supp.2d 458, 461 (D.S.C. 2005) (citing,
e.g., St. Paul Mercury Indem. Co., 303 U.S. at 294
("If [the plaintiff] does not desire to try his case in
the federal court he may resort to the expedient of suing for
less than the jurisdictional amount, and though he would be
justly entitled to more, the defendant cannot remove."))
(internal citations omitted). However, where a complaint
includes a request for nonmonetary relief or a request for a
money judgment in a state that permits recovery in excess of
the amount demanded, the court can look to the Notice of
Removal to determine the amount in controversy. 28 U.S.C.
§ 1446(c)(2)(A) (2012). If the court finds by a
preponderance of the evidence that the amount in controversy
exceeds the amount specified in section 1332(a), then removal
is proper. 28 U.S.C. § 1446(c)(2)(B).
section 1332 requires complete diversity between all parties.
Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806).
Complete diversity requires that "no party shares common
citizenship with any party on the other side." Mayes
v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). Because
federal courts are forums of limited jurisdiction, any doubt
as to whether a case belongs in federal or state court should
be resolved in favor of state court. See Auto Ins.
Agency, Inc. v. Interstate Agency, Inc., 525 F.Supp.
1104, 1106 (D.S.C. 1981) (citations omitted).
is no dispute that complete diversity exists in this matter.
The parties dispute whether the amount in controversy
requirement is met in order to support removal. Plaintiff
moves to remand this matter to state court on the basis that
the amount in controversy does not exceed $75, 000.00. (ECF
No. 10). Specifically, Plaintiff asserts that because the
ad damnum clause of the complaint limits the damages
sought to $75, 000.00, the amount in controversy cannot be
met. Defendant asserts that Plaintiff seeks nonmonetary
relief in the form of having the loan agreement declared
unconscionable, and such relief would greatly exceed $75,
000.00. Plaintiff submitted a Declaration regarding damages,
wherein Plaintiff states that (1) the entire value of his
claim does not exceed $75, 000.00 and (2) Plaintiff will not
seek or accept any relief or recovery greater than $75,
000.00. (ECF No. 13-1 at 2 ¶ 3, 4).
review, the court notes that Plaintiff did not specify an
amount of damages in his complaint, but merely attempted to
provide an estimate of the maximum amount of damages to which
he might be entitled. (See ECF No. 1-1 at 10).
Therefore, the court may interpret Plaintiff's
stipulation as to damages as a clarification of the amount of
damages Plaintiff seeks. See, e.g., Carter v. Bridgestone
Americas, Inc., Civil Action No. 2:13-CV-00287-PMD, 2013
WL 3946233, at *3 (D.S.C. July 31, 2013) ("Defendant
concedes that ‘Plaintiff does not specify an amount of
damages in her Complaint.' (Internal citation omitted.)
The Court interprets Plaintiff's statements in her
notarized affidavit as to the amount in controversy as a
stipulation, clarifying that the total amount of damages
sought by her Complaint is not more than $60,
000.000[sic]."); Gwyn v. Wal-Mart Stores, Inc.,
955 F.Supp. 44, 46 (M.D. N.C. 1997) ("A post-removal
stipulation or amendment of the complaint to allege damages
below the jurisdictional amount will not destroy federal
jurisdiction once it has attached. However, when facing
indeterminate claims, . . . the court may consider a
stipulation filed by the plaintiff that the claim does not
exceed" the jurisdictional amount.) (Internal citation
and quotation marks omitted). Though Plaintiff submitted a
Declaration in an attempt to limit the maximum amount of
damages sought, South Carolina law permits recovery in excess
of the relief requested by Plaintiff. See Battery
Homeowners Ass'n v. Lincoln Fin. Res., Inc., 422
S.E.2d 93, 95-96 (S.C. 1992) (quoting South Carolina Rule of
Civil Procedure 54(c) which provides that a party shall be
granted the relief to which it is entitled even if the relief
was not demanded in the pleadings); Jones v.
Bennett, 348 S.E.2d 365 (S.C. Ct. App. 1986) (noting
that it was error for a trial judge to instruct a jury that
it could not return a verdict in excess of the relief prayed
for in accordance with SCRCP 54(c)); see also Cook v.
Medtronic Sofamor Danek, USA, Inc., Civil No.
9:06-cv-01995, 2006 WL 2171130, at *2, n.2 (D.S.C. July 31,
2006) (noting that South Carolina does not limit damage
awards to the amount specified in the pleadings). Thus, the
court finds that pursuant to 28 U.S.C. § 1446(c), this
case presents the precise situation that permits courts to
also consider the Notice of Removal in order to determine the
amount in controversy by a preponderance of the evidence.
contends that Plaintiff's Declaration is insufficient
because it fails to account for the value of the nonmonetary
relief requested. When a plaintiff requests nonmonetary
relief, courts measure the amount in controversy by the value
of the object of the litigation. JTH Tax, Inc. v.
Frashier, 624 F.3d 635, 639 (4th Cir. 2010). The value
of such relief is determined by reference to the larger of
two figures: either the worth of the relief to the plaintiff
or its cost to the defendant. Id. Here, Plaintiff
maintains that he will limit his relief to under $75, 000.00.
However, in his complaint, prior to the ad damnum
clause, Plaintiff requests specific relief including that a
"court should issue its order and grant relief as it
deems just and proper under 37-10-105(c)." (ECF No. 1-1
at 9 ¶ 21). Essentially, Plaintiff requests that a court
find the loan agreement unconscionable. Pursuant to S.C. Code
Ann. § 37-10-105(c), when a court finds that an
agreement is unconscionable as a matter of law under section
37-5-108, the court can grant the following relief: (1)
refuse to enforce the entire agreement or the part of the
agreement that it determines to have been unconscionable; (2)
enforce the agreement less the unconscionable portion; (3)
rewrite or modify the agreement to eliminate the
unconscionable term and enforce the new agreement; or (4)
award damages equal to or less than the loan finance charge
while permitting repayment of the loan without a finance
charge as well as attorney's fees and costs. S.C. Code
Ann. § 37-10-105(c). Plaintiff does not suggest that a
specific term in the agreement with Defendant was
unconscionable, but that the process of entering into the
agreement was unconscionable since he was deprived of
counsel. Thus, it is not reasonable that any court would
choose to omit a specific portion of the agreement upon a
finding of unconscionability. If a court were to find that
Defendant's actions were unconscionable as a matter of
law, a court would have to either refuse to enforce the
entire agreement or award damages equivalent to the amount of
the finance charge along with attorney's fees and costs.
Accordingly, the cost of Plaintiff's requested relief to
Defendant would be, at a minimum, the cost associated with
awarding damages to Plaintiff equivalent to the finance
charge on the loan. However, the greater cost of
Plaintiff's requested relief to Defendant would be the
cost associated with a finding that the entire agreement is
unenforceable. Such a finding would render Defendant unable
to foreclose on the property or collect the outstanding
balance. See e.g., Void v. OneWest Bank, Civil
Action No. DKC 11-0838, 2011 WL 3240478, at *3 (D. Md. July
27, 2011). This latter cost is the value by which the court
measures the amount in controversy. See Lee v.
Citimortgage, Inc., 739 F.Supp.2d 940, 946 (E.D. Va.
2010) (noting that the relevant inquiry is the cost to
defendant of complying with any prospective equitable relief
the plaintiff seeks).
provided an affidavit along with the Notice of Removal
indicating the value of its agreement with Plaintiff. (ECF
No. 1-3). The mortgage is secured by a debt that has an
original principal amount of $35, 714.00 plus interest at the
fixed rate of 3.500% per year over fifteen years until the
total amount of the debt is paid. (Id. at 3 ¶
12). The total amount of principal and interest Plaintiff is
obligated to pay on the debt is $45, 957.60. (Id. at
3 ¶ 13). Additionally, Plaintiff is obligated to pay an
additional $92.31 per month in escrow payments towards
property taxes and homeowner's insurance. (ECF No. 1-2 at
17). In total, over the course of the loan, Plaintiff is
obligated to pay Defendant $62, 573.40. Presumably, if a
court determines that the entire agreement is unenforceable,
such relief would cost Defendant $62, 573.40.
the amount of the nonmonetary relief requested by Plaintiff
is less than $75, 000.00, this court must still consider the
amount of requested monetary relief in order to determine the
amount in controversy. Plaintiff also requests relief
pursuant to S.C. Code Ann. §§ 37-10-105(a) and (d).
(ECF No. 1-1 at 9 ¶¶ 24, 25). Pursuant to
subsection (a), when a court finds that a creditor has
violated the attorney choice provision as outlined in S.C.
Code Ann. § 37-10-102 (2016), a court may assess a
penalty against the creditor in any amount between $1, 500.00
and $7, 500.00. Thus, a court may assess up to a $7, 500.00
penalty against Defendant in addition to invalidating the
loan agreement. Additionally, if Plaintiff were to prevail, a
court would be required to award Plaintiff attorney's
fees. S.C. Code Ann. § 37-10-105(d) ("In an action
in which it is found that a creditor has violated this
chapter, the court shall award to the debtor the costs of the
action and to his attorneys their reasonable fees.").
When attorney's fees are required by statute, a court may
consider the amount of attorney's fees when determining
the amount in controversy. Francis v. Allstate Ins.
Co., 709 F.3d 362, 368-69 (4th Cir. 2010). Here,
Defendant asserted in the Notice of Removal that the value of
this case exceeds $75, 000.00, and has demonstrated through
documentation provided to this court that the value of the
invalidated loan agreement and possible penalties assessed by
a court pursuant to sections 37-10-105(a) and (c) would cost
Defendant about $70, 000.00. Thus, in order for this court to
determine that the amount in controversy exceeds $75, 000.00,
this court would have to find that the value of
attorney's fees and costs in this case exceeds $5,
000.00. This case involves disputes regarding federal
jurisdiction, as well as issues of contractual and statutory
interpretation. Accordingly, this court finds that the
"complexity of this case is sufficient to establish that
it is more likely than not that the attorney's fees
likely to be incurred by [Plaintiff] in this [action] . . .
will exceed the jurisdictional threshold." Id.
at 369. Plaintiff has not provided any documentation
demonstrating how a court might invalidate the entire
agreement, award statutorily prescribed penalties, and
statutorily prescribed attorney's fees while limiting the
relief to $75, 000.00. See Dart CherokeeBasin
Operating Co., LLC v. Owens,135 S.Ct. 547, 554 (2014)