United States District Court, D. South Carolina, Orangeburg Division
Thelma L. Boone, Plaintiff,
Quicken Loans, Inc., Defendant.
AMENDED ORDER AND OPINION
matter is before the court pursuant to Plaintiff Thelma
Boone's ("Plaintiff") Motion to Remand the case
to the Orangeburg County (South Carolina) Court of Common
Pleas. (ECF No. 9). 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
October 15, 2015, Plaintiff filed a complaint for a non-jury
trial in the Court of Common Pleas in Orangeburg County,
South Carolina. (ECF No. 1-1 at 7). Plaintiff alleges that
she obtained a real estate loan with Defendant. (Id. at
8 ¶ 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 8
¶ 6). Plaintiff alleges that Defendant provided her with
a pre-populated Attorney/Insurance Preference Checklist,
which prevented Plaintiff from choosing an attorney to
represent her in the transaction. (Id. at 9
¶¶ 11-13). According to Plaintiff, the deprivation
of a meaningful choice as to the attorney to represent her in
the transaction was unconscionable pursuant to S.C. Code Ann.
§§ 37-10-105 (2016), 37-5-108 (2016). (Id.
at 9 ¶14). Plaintiff requests that the court issue an
order and grant relief pursuant to S.C. Code Ann. §
37-10-105(c). (Id. at 10 ¶ 23). Plaintiff
further requests that the court assess a statutory penalty
between $1, 500.00 and $7, 500.00. (Id. at 10 ¶
24). Plaintiff also asserts that she is entitled to
attorney's fees and costs from Defendant as permitted by
statute. (Id. at 11 ¶ 25). For jurisdictional
purposes, Plaintiff alleged that she 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 8 ¶¶ 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 11.)
November 30, 2015, 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 December 17, 2015,
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. 9). Plaintiff also moved the court
to stay all matters related to Defendant's Motion to
Dismiss. (ECF No. 9). On January 7, 2016, Defendant
filed a response in opposition to Plaintiff's Motion to
Remand. (ECF No. 11). Plaintiff filed a Reply in Support of
the Motion to Remand and Opposition to Defendant's Notice
of Removal on March 4, 2016. (ECF No. 22). After being
granted leave to do so by the court, Defendant filed a
Surreply in Opposition to Plaintiff's Reply in Support of
Motion to Remand. (ECF No. 25). A hearing on the Motion to
Remand was held on April 7, 2016.
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. 9). 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 her
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. 22-1 at 2 ¶ 3, 4).
threshold matter, Defendant asserts that because Plaintiff in
this case, as well as the plaintiff in Vance Boone v.
Quicken Loans, Inc., Civil Action No. 5:15-cv-4843
(D.S.C. filed Dec. 4, 2015), are co-obligors in the same loan
agreement, they are necessary parties in each other's
cases such that the two cases should be consolidated. See
Delta Fin. Corp. v. Paul D. Comanduras & Associates, 973
F.2d 301, 305 (4th Cir. 1992) ("The cases are virtually
unanimous in holding that in suits between parties to a
contract seeking rescission of that contract, all parties to
the contract, and others having a substantial interest in it,
are necessary parties.") Defendant suggests that if the
cases were consolidated, the court would have to add the
maximum amounts in the ad damnum clauses, thus the
combined case would have a maximum value of $150, 000.00.
There is no case law demonstrating that this court would have
to make that assumption for the purpose of determining the
amount in controversy. Accordingly, this court will conduct
its review of the motion to remand in this case without
considering whether this case would be appropriately
consolidated with Vance Boone v. Quicken Loans, Inc.
review, the court notes that Plaintiff did not specify an
amount of damages in her complaint, but merely attempted to
provide an estimate of the maximum amount of damages to which
she might be entitled. (See ECF No. 1-1 at 11).
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
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 she will limit his relief to under $75,
000.00. However, in her 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 she 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. 1-2). The mortgage is secured by a debt that has an
original principal amount of $104, 700.00 plus interest at
the fixed rate of 3.375% per year over fifteen years until
the total amount of the debt is paid. (Id. at 3
¶ 7). The total amount of principal and interest
Plaintiff is obligated to pay on the debt is $133, 574.40.
(Id. at 3 ¶ 8). Presumably, if a court
determines that the entire agreement is unenforceable, such
relief would cost Defendant $133, 574.40. Plaintiff has not
provided any documentation demonstrating how a court might
invalidate the entire agreement while limiting the relief to
$75, 000.00. See Dart Cherokee Basin Operating Co., LLC
v. Owens, 135 S.Ct. 547, 554 (2014) (noting that when a
defendant's assertion of the amount in controversy is
challenged, both sides submit proof and the court decides, by
a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied). Nor
has Plaintiff provided any documentation to refute
Defendant's assertion ...