Hudak et al v. Travelers Home and Marine Insurance, The et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/21/2014. (JLC)
2014 Feb-21 AM 09:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TIM HUDAK, et al,
TRAVELERS HOME AND
COMPANY, et al,
) Case No.: 4:13-CV-2196-VEH
On September 23, 2013, the plaintiffs, Tim and Janice Hudak, filed this civil
action in the Circuit Court of Etowah County, Alabama. (Doc. 1-1 at 3). The
complaint alleges, as against both defendants,1 counts for breach of contract (Count
One), bad faith refusal to pay insurance proceeds (Count Two), fraud (Count Three),
negligence (Count Four), and wantonness (Count Five). All counts of the complaint
arise out of an incident in which the plaintiffs’ home was damaged, they allegedly
made a claim on the defendants for payment due under a homeowner’s policy
insuring their home, and the defendants allegedly refused to pay.
The defendants are Travelers Home and Marine Insurance Company
(“Travelers”) and BBVA Compass Insurance (“Compass”).
The case was removed to this court on December 4, 2013, on the basis that this
court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1).2 (Doc. 1
at 2). The case comes before the court on the plaintiffs’ motion to remand filed on
January 3, 2014 (doc. 7), and the plaintiffs’ amended motion to remand filed on
January 22, 2014 (doc. 10). Travelers has responded only to the initial motion to
remand. (Doc. 8). For the reasons stated herein, the motions will be GRANTED.
STANDARD FOR REMAND
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). For removal to be proper, the court must have
That section provides, in pertinent part: “The district courts shall have 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.” 28
U.S.C.A. § 1332(a)(1). Only defendant Travelers joined in the removal. “The unanimity rule
requires that all defendants consent to and join a notice of removal in order for it to be effective.”
Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008); see also 28
U.S.C.A. § 1446(b)(2)(A) (“[A]ll defendants who have been properly joined and served must
join in or consent to the removal of the action.”) (emphasis added). In this case, Travelers
contends that Compass has been fraudulently joined. It has been noted that “[a] fraudulently
joined party is not properly joined and, accordingly, need not join or consent to the removal.”
Maxwell v. E-Z-Go, a Div. of Textron, Inc., 843 F. Supp. 2d 1209, 1213 (M.D. Ala. 2012) (citing
Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 n. 4 (3d Cir.1995); Jernigan v. Ashland Oil Inc.,
989 F.2d 812, 815 (5th Cir.1993); and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1
(9th Cir.1988)). The court has found no Eleventh Circuit opinion adopting this approach, but, in
light of the statute’s use of the phrase “properly joined,” this approach is most likely the correct
one. The court will not examine the issue further, however, because the motion to remand did
not raise this issue, and the issue is not jurisdictional. In re Bethesda Mem'l Hosp., Inc., 123 F.3d
1407, 1410 n. 2 (11th Cir. 1997); see also, Smith v. Health Ctr. of Lake City, Inc., 252 F. Supp.
2d 1336, 1339 (M.D. Fla. 2003) (same).
subject-matter jurisdiction in the case. “Only state-court actions that originally could
have been filed in federal court may be removed to federal court by the Defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In addition, the removal
statute must be strictly construed against removal, and any doubts should be resolved
in favor of remand. See, City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310,
1313 (11th Cir. 2012) (“[b]ecause removal jurisdiction raises significant federalism
concerns, federal courts are directed to construe removal statutes strictly. Indeed, all
doubts about jurisdiction should be resolved in favor of remand to state court.”)
“In removal cases, the burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.” Friedman v. New York Life Ins. Co., 410
F.3d 1350, 1353 (11th Cir. 2005) (citation omitted); Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir.2001).
That burden goes not only to the issue of federal jurisdiction, but also to
questions of compliance with statutes governing the exercise of the right
of removal. Albonetti v. GAF Corporation-Chemical Group, 520
F.Supp. 825, 827 (S.D. Texas 1981); Jennings Clothiers of Ft. Dodge,
Inc. v. U.S. Fidelity & Guaranty Co., 496 F.Supp. 1254, 1255 (D.Iowa
1980); Fort v. Ralston Purina Company, 452 F.Supp. 241, 242
Parker v. Brown, 570 F.Supp. 640, 642 (D.C. Ohio, 1983)
While it is undoubtedly best to include all relevant evidence in the
petition for removal and motion to remand, there is no good reason to
keep a district court from eliciting or reviewing evidence outside the
removal petition. We align ourselves with our sister circuits in adopting
a more flexible approach, allowing the district court when necessary to
consider post-removal evidence in assessing removal jurisdiction. We
emphasize, as did the court in Allen, that “under any manner of proof,
the jurisdictional facts that support removal must be judged at the time
of the removal, and any post-petition affidavits are allowable only if
relevant to that period of time.” Allen, 63 F.3d at 1335.
Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir. 2000).
As stated above, the case was removed on the basis that this court has subject
matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) which provides: “The district
courts shall have 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.” 28 U.S.C.A. § 1332(a)(1).
The plaintiffs do not request a sum certain after each count, asking instead for
“compensatory damages against the [d]efendants, separately and severally, in an
amount above the jurisdictional limits3 of this [c]ourt to be determined by a struck
As noted, the case was originally filed in the Circuit Court of Etowah County, Alabama.
The “jurisdictional limits” language thus refers to the jurisdictional limits of that court. The
language “above the jurisdictional limits of this [c]ourt” should not be read as “above the upper
jurisdictional limits of this court.” There are no upper monetary limits in the Alabama Circuit
Courts. See, Ala. Code § 12-11-30 (“The circuit court shall have exclusive original jurisdiction
of all civil actions in which the matter in controversy exceeds ten thousand dollars ($10,000),
exclusive of interest and costs, and shall exercise original jurisdiction concurrent with the district
court in all civil actions in which the matter in controversy exceeds three thousand dollars
jury, plus interest and costs.” (Doc. 1-1 at 5, 6, 7). In the “wherefore” clause, the
pray that this [c]ourt will impanel a jury and that upon consideration of
the evidence herein, grant to the [p]laintiffs all compensations [sic] to
which they are entitled, including costs, reimbursement for expenses,
compensation for mental anguish, loss of reputation, loss of income,
compensatory damages, and punitive damages to which the trier of facts
may determine as appropriate under the law, and such other, further and
different relief to which the [p]laintiffs may be entitled in the premises.
(Doc. 1-1 at 7). If, as in this case, a plaintiff makes “an unspecified demand for
damages in state court, a removing defendant must prove by a preponderance of the
evidence that the amount in controversy more likely than not exceeds the . . .
jurisdictional requirement.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357
(11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d
1069 (11th Cir.2000). See also, 28 U.S.C.A. § 1446 (c)(2)(B) (“[R]emoval of the
action is proper . . . if the district court finds, by the preponderance of the evidence,
that the amount in controversy exceeds the amount specified in section 1332(a).”).
The Eleventh Circuit has stated:
We reiterate that the burden of proving jurisdiction lies with the
removing defendant. A conclusory allegation in the notice of removal
that the jurisdictional amount is satisfied, without setting forth the
($3,000), exclusive of interest and costs.”). The language refers to the lower limit of the circuit
courts. The court does not infer that the complaint somehow states an amount exceeding this
court’s minimum jurisdictional amount because of this language.
underlying facts supporting such an assertion, is insufficient to meet the
defendant's burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873
(10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564,
567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092,
1097 (11th Cir.1994) (concluding that removing defendant did not meet
burden of proving amount in controversy where it offered “nothing more
than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S.
Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant
must make “affirmative showing ... of all the requisite factors of
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir. 2001). “In some
cases, this burden requires the removing defendant to provide additional evidence
demonstrating that removal is proper.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058,
1061 (11th Cir. 2010) (footnotes omitted). When this method is used, a removing
defendant may rely on its own affidavits, declarations, or other documentation to
establish the amount in controversy. McGee v. Sentinel Offender Servs., LLC, 719
F.3d 1236, 1241 (11th Cir. 2013) (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 755 (11th Cir.2010)). However, “under any manner of proof, the jurisdictional
facts that support removal must be judged at the time of the removal, and any postpetition affidavits are allowable only if relevant to that period of time.” Sierminski
v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir. 2000) (emphasis added).
The plaintiff’s original motion to remand states only:
The Initial filing of the Complaint in the above styled cause was
filed in the Circuit Court of Etowah County, Alabama
The Complaint is silent as to the amount in controversy.
The Plaintiff [sic] is [sic] not requesting damages in excess of
$74,999.99 and concedes that they will not do so.
(Doc. 7). Travelers responded to this motion in part by citing Seckel v. Travelers
Home & Marine Ins. Co., 4:12-CV-4163-KOB, 2013 WL 360421 at *2(N.D. Ala. Jan.
29, 2013) (Bowdre, J.) for the proposition stated therein that the plaintiffs “could
have submitted an affidavit in support of [the] motion to remand specifically stating
that [the complaint] does not claim any more than $74,999.99.” (Doc. 8 at 3).
Travelers also cites Smith v. State Farm Fire & Cas. Co., 868 F. Supp. 2d 1333, 1335
(N.D. Ala. 2012) (Acker, J.) for the proposition that “a plaintiff cannot simply state
that he will not seek more than $74,999.99; rather, he must expressly state that he will
not accept more than $74,999.99.”4 (Doc. 8 at 3) (emphasis in original). In response,
the plaintiff filed an amended motion to remand which merely states:
Plaintiff [sic] adopts and incorporates [sic] all averments included
in their previously filed Motion to remand with the exception of
Paragraph three (3).
Paragraph three (3) is amended to indicate: The Plaintiffs are not
requesting damages in excess of $74,999.99 and will not accept
Actually, the plaintiff could seek damages up to $75,000.00 and this court still would not
have jurisdiction. The statute requires the amount in controversy to exceed $75,000.00. See, 28
U.S.C. § 1332(a)(1).
damages in excess of $74,999.99.
(Doc. 10 at 1). No further submissions have been filed.
As noted above, the amount in controversy must be measured as of the date of
removal, not afterwards based on ensuing developments. It naturally follows that
“events occurring after removal which may reduce the damages recoverable below
the amount in controversy requirement do not oust the district court's jurisdiction.”
Poore v. American–Amicable Life Ins. Co. of Texas, 218 F.3d 1287, 1291 (11th
Cir.2000), overruled in part on other grounds in Alvarez v. Uniroyal Tire Co., 508
F.3d 639, 641 (11th Cir.2007). However, “what is prohibited are post-removal
changes in the amount in controversy, not post-removal clarifications of the amount
that was in controversy at the moment of removal.” Jackson v. Select Portfolio
Servicing, Inc., 651 F.Supp.2d 1279, 1282 (S.D.Ala. 2009) (Steele, J.) (emphasis
added). “Thus, if a plaintiff comes forward after removal and clarifies (as opposed to
altering) facts bearing on the amount in controversy, courts in this Circuit routinely
accept such evidence in determining whether § 1332 jurisdiction existed at the
moment of removal.” Land Clearing Co., LLC v. Navistar, Inc., No. CIV.A. 110645-WS-M, 2012 WL 206171 at *3 (S.D. Ala. Jan. 24, 2012) (Steele, J.).
The motions to remand, filed by plaintiffs’ counsel, have made it clear that
“[p]laintiffs are not requesting damages in excess of $74,999.99 and will not accept
damages in excess of $74,999.99.” (Doc. 10 at 1). The court sees this as a
clarification of the amount claimed in the original complaint. While the plaintiffs
have produced no affidavits, these representations by counsel will suffice. See,
Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 808-09 (11th Cir.
2003) (“Because McKinnon's lawyers are officers of this court and subject to
sanctions under Federal Rule of Civil Procedure 11 for making a representation to the
court for an improper purpose, such as merely to defeat diversity jurisdiction, we give
great deference to such representations and presume them to be true.”). Travelers has
produced no evidence that this representation is untrue, or that it was made in bad
Based on the foregoing, the motion to remand, and the amended motion to
remand will be GRANTED, and this case will be REMANDED to the Circuit Court
of Etowah County, Alabama.
DONE and ORDERED this 21st day of February, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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