Robinson v. Progressive Direct Insurance Company

Filing 9

ORDER granting 4 Motion to Remand. This action is remanded to the Circuit Court of Wilcox County. Signed by Chief Judge William H. Steele on 12/3/2012. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
IRA SENTELL ROBINSON,
Plaintiff,
v.
AMBER NYKOLE CLAYTON, et al.,
Defendants.

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)CIVIL ACTION 12-0622-WS-C
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ORDER
This matter is before the Court on the plaintiff’s motion to remand. (Doc.
4). The sole remaining defendant (“Progressive”) has filed a response, (Doc. 6),
the plaintiff a reply, (Doc. 8), and the motion is ripe for resolution.
BACKGROUND
Progressive removed on the basis of diversity of citizenship after the nondiverse defendant was dismissed on the plaintiff’s motion. The plaintiff and
Progressive are of diverse citizenship, and the question centers on the amount in
controversy.
The complaint alleges that the plaintiff was injured in a motor vehicle
accident with the individual defendant. (Doc. 1, Attachment at 37, ¶ 5). The
complaint seeks recovery from Progressive under its policy insuring the plaintiff,
in particular the policy’s uninsured/underinsured coverage. (Id. at 38, ¶ 10).
“Under the limits of the insurance policies named above and under the laws of the
State of Alabama, Plaintiffs are entitled to recover uninsured and underinsured
motorist benefits.” (Id., ¶ 11).
The ad damnum clause against the tortfeasor seeks no specific amount of
recovery but only such compensatory and/or punitive damages as a jury may

award. (Doc. 1, Attachment at 37). Similarly, the ad damnum clause against
Progressive mentions no dollar figure but “demands judgment against the
Defendant in such an amount of damages as a jury deems reasonable and may
reward [sic], plus interest and cost [sic].” (Id. at 38). The complaint describes the
plaintiff’s damages as follows:
[H]e was caused to suffer physical injury; he was caused to suffer
a permanent injuries [sic]; he was caused to suffer from physical
pain and suffering associated with his injuries; he has incurred medical
bills and expenses associated with the treatment of his injuries and will
continue to do so in the future; he has lost wages; he has been caused to
suffer from extreme emotional distress and mental anguish and will
continue to suffer from the same; he has lost money; he has otherwise
been injured and damaged.
(Doc. 1, Attachment at 37, ¶ 8).
DISCUSSION
“A removing defendant bears the burden of proving proper federal
jurisdiction.” Adventure Outdoors, Inc. v. Blomberg, 552 F.3d 1290, 1294 (11th
Cir. 2008) (internal quotes omitted); accord Friedman v. New York Life Insurance
Co., 410 F.3d 1350, 1353 (11th Cir. 2005).
“[W]e hold that where a plaintiff has made 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
$[75],000 jurisdictional requirement.” Tapscott v. MS Dealer Service Corp., 77
F.3d 1353, 1357 (11th Cir. 1996), overruled on other grounds, Cohen v. Office
Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Because the plaintiff has made an
unspecified demand for damages, the Tapscott standard applies here.
“When the complaint does not claim a specific amount of damages,
removal from state court is proper if it is facially apparent from the complaint that
the amount in controversy exceeds the jurisdictional requirement. If the
jurisdictional amount is not facially apparent from the complaint, the court should

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look to the notice of removal and may require evidence relevant to the amount in
controversy at the time the case was removed.” Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001).
The amount in controversy is not apparent from the face of the complaint,
because there is no way to determine from the complaint whether the plaintiff has
sustained injury so severe as to make it more likely than not that over $75,000 is in
controversy. Progressive points to the description of damages quoted above, (Doc.
6 at 2-3), but merely listing categories of damage does not satisfy the plaintiff’s
burden. See Williams, 269 F.3d at 1318, 1320 (allegations that the plaintiff tripped
over a curb and suffered permanent physical and mental injuries, that she incurred
substantial medical expenses, that she suffered lost wages, that she experienced a
diminished earning capacity, and that she would continue to suffer these damages
in the future, along with a demand for both compensatory and punitive damages,
did not render it facially apparent that the amount in controversy exceeded
$75,000).1
Progressive’s only other attempt to meet its burden is to argue that the
complaint demands policy limits. (Doc. 6 at 3). Progressive relies on paragraph
11, which is quoted above. An allegation that the plaintiff is entitled to recover
benefits “[u]nder the limits of the policies” cannot be a demand for policy limits
but, at most, for something “under” those limits. Paragraph 11 appears to assert
only that the plaintiff is entitled to some degree of recovery under the policy. At

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Progressive ignores Williams, emphasizing instead the assurance of Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 753 (11th Cir. 2010), that “the use of deduction,
inference, or other extrapolation of the amount in controversy is [not] impermissible,”
and that of Roe v. Michelin North America, Inc., 613 F.3d 1058, 1062 (11th Cir. 2010),
that courts “need not ‘suspend reality or shelve common sense in determining whether
the face of a complaint … establishes the jurisdictional amount.’” (quoting Pretka, 608
F.3d at 770). These are of course governing principles, but Williams is a governing
application of those principles, and it was not overruled by Pretka or Roe (nor could it
have been, given that Prekta and Roe were not en banc opinions). On the contrary, both
Pretka and Roe affirmatively invoked Williams. 613 F.3d at 1061; 608 F.3d at 752-55.

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any rate, while Progressive represents that policy limits are $200,000, it has not
furnished the policy, its declarations page or an affidavit, so it has offered no
evidence that the policy limits actually exceed $75,000.2
CONCLUSION
For the reasons set forth above, the plaintiff’s motion to remand is granted.
This action is remanded to the Circuit Court of Wilcox County.
DONE and ORDERED this 3rd day of December, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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Progressive argues that, since the plaintiff recovered $25,000 from the
individual defendant in state court, subject matter jurisdiction exists as long as the
plaintiff seeks over $50,000 from Progressive. (Doc. 6 at 3). Progressive overlooks both
that a plaintiff’s demands against multiple defendants cannot be aggregated to meet the
jurisdictional threshold, e,g., Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1263 n.7
(11th Cir. 2000), and that, at the time of removal, no amount remained in controversy with
respect to the individual defendant, who had been dismissed. At any rate, Progressive
cannot meet its burden with respect to $50,000 any more than it can with respect to
$75,000.

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