Lane v. State Farm Mutual Automobile Insurance Company et al

Filing 11

ORDER granting 6 Motion to Remand. The Clerk shall remand this case to Maricopa County Superior Court. Signed by Judge David G Campbell on 6/20/12. (Attachments: # 1 Copy of Remand Letter)(LAD)

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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Burley J. Lane, Jr. No. CV12-0771 PHX DGC Plaintiff, 10 ORDER 11 v. 12 State Farm Mutual Automobile Insurance Company, an Illinois corporation, 13 Defendant. 14 15 I. Background. 16 Plaintiff filed a complaint against Defendant in Arizona state court on 17 December 19, 2011. The complaint asserts breach of contract and bad faith tort claims 18 arising out of Plaintiff’s underinsured motorist policy. Plaintiff seeks compensatory, 19 consequential, and punitive damages. Doc. 1-1. 20 Defendant removed the action to this Court on April 12, 2012. Defendant asserts 21 in its notice of removal that the Court has subject matter jurisdiction under 28 U.S.C. 22 § 1441 because the court has original jurisdiction under 28 U.S.C. § 1332(a). Doc. 1-3. 23 II. Removal and Remand Standards. 24 Pursuant to the removal statute, 28 U.S.C. § 1441, any civil action brought in state 25 court over which the federal district courts have original jurisdiction may be removed to 26 the federal district court for the district where the action is pending. 28 U.S.C. § 1441(a). 27 There is a “strong presumption” against removal and “[f]ederal jurisdiction must be 28 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v.     1 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 2 removal jurisdiction means that the defendant always has the burden of establishing that 3 removal is proper.” Id. “If at any time before final judgment it appears that the district 4 court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 5 III. “The ‘strong presumption’ against Discussion. 6 The complaint in this case does not demand a specific dollar amount. “Where the 7 complaint does not demand a dollar amount, the removing defendant bears the burden of 8 proving by a preponderance of the evidence that the amount in controversy exceeds 9 [$75,000].” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) 10 (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)); see 11 Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (“Where it is not 12 facially evident from the complaint that more than $75,000 is in controversy, the 13 removing party must prove, by a preponderance of the evidence, that the amount in 14 controversy meets the jurisdictional threshold.”). To meet its burden, Defendant “must 15 provide evidence establishing that it is ‘more likely than not’ that the amount in 16 controversy exceeds [$75,000].” Sanchez, 102 F.3d at 404; see Gaus, 980 F.2d at 566- 17 67. 18 [complaint] is silent” as to the dollar amount of damages the plaintiff seeks. Singer, 116 19 F.3d at 377. “[R]emoval ‘cannot be based simply upon conclusory allegations’ where the 20 In its response to the motion to remand, Defendant correctly states that Plaintiff’s 21 recovery could be as much as $100,000, the limit of his insurance policy. This number, 22 however, represents the maximum recovery that Plaintiff could receive under his policy 23 and not the actual amount sought. Defendant must still submit evidence that the damages 24 sought by Plaintiff are likely exceed the statutory minimum for diversity jurisdiction. 25 Defendant argues that Plaintiff certified in state court that this case was not subject 26 to mandatory arbitration because the damages, including punitive damages but excluding 27 attorney’s fees, exceeded $50,000. Defendant relies on this certification to say that the 28 amount in controversy is likely to exceed $75,000. Plaintiff’s certification, however, ‐ 2 ‐      1 only says that the damages sought will be over $50,000; it says nothing determinative 2 about the likelihood that the damages will exceed $75,000. 3 Defendant argues that the potential recovery of sizeable attorney’s fees, plaintiff’s 4 current medical bills totaling $35,000, and damages for severe and permanent injuries 5 requiring continued treatment are likely to exceed the jurisdictional minimum. 6 Attorney’s fees, however, may only be included in the amount in controversy if they were 7 incurred prior to the date of removal; future attorney’s fees are too speculative to be 8 included. Dukes v. Twin City Fire Ins. Co., CV-09-2197-PHX-NVW 2010 WL 94109 at 9 *2 (D. Ariz. Jan. 6, 2010). Defendant fails to identify any attorneys’ fees incurred to 10 date. 11 Defendant points to the $35,000 in medical expenses as evidence that the amount 12 in controversy will likely exceed $75,000. Although it is certainly possible that the 13 amount needed to pay for future medical treatment and lost wages will exceed $75,000, 14 Defendant has not provided sufficient evidence to show that it more likely than not will 15 exceed that amount. Speculative estimates of damages “neither overcome[] the ‘strong 16 presumption’ against removal jurisdiction, nor satisf[y] [Defendant]’s burden of setting 17 forth…the underlying facts supporting its assertion that the amount in controversy 18 exceeds [$75,000].” Gaus, 980 F.2d at 567. 19 While Defendant is correct in stating that the Plaintiff neither in his motion to 20 remand nor in his reply in support of the motion to remand eliminates the possibility that 21 his recovery may be greater than $75,000, Plaintiff is not required to eliminate that 22 possibility in order to prevail in this motion. Defendant bears the burden of showing that 23 that “it is ‘more likely than not’ that the amount in controversy exceeds [$75,000].” 24 Sanchez, 102 F.3d at 404. Defendant has failed to meet their burden. The Court 25 accordingly will remand this matter to state court. See 28 U.S.C. § 1447(c); Valdez, 372 26 F.3d at 1118 (“If the district court determines that it is sufficiently doubtful that the 27 amount-in-controversy requirement has been met and thus that federal subject matter 28 jurisdiction is lacking, the district court should…remand to state court.”); Matheson, 319 ‐ 3 ‐      1 F.3d at 1090 (“Where doubt regarding the right to removal exists, a case should be 2 remanded to state court.”); Sanchez, 102 F.3d at 406 (directing the district court to 3 remand to state court where the defendant had failed to establish the jurisdictional 4 amount by a preponderance of the evidence). 5 IT IS ORDERED: 6 1. The motion to remand (Doc. 6) is granted. 7 2. The Clerk shall remand this case to Maricopa County Superior Court. 8 Dated this 20th day of June, 2012. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 4 ‐ 

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