Dragos v. First American Property & Casualty Insurance Company et al

Filing 22

ORDERED that this case is remanded to Maricopa County Superior Court. Signed by Judge David G Campbell on 7/25/17. (Attachments: # 1 Remand Letter)(EJA)

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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 Pamela Dragos, No. CV17-01564-PHX-DGC Plaintiff, 10 11 v. 12 ORDER First American Property & Casualty Insurance Company, et al., 13 Defendants. 14 15 16 Defendant First American removed this case on the basis of diversity jurisdiction. 17 Plaintiff filed a motion for remand, which is fully briefed. No party requests oral 18 argument. 19 The appraised loss amount in this case was over $90,000, but Defendant tendered 20 payment of approximately $76,000 shortly before the case was removed. Defense 21 counsel assert that they were not informed that their client had tendered payment before 22 they filed the removal papers. 23 For a federal court to exercise removal jurisdiction under 28 U.S.C. § 1446, the 24 amount in controversy must “exceed[] the sum or value of $75,000, exclusive of interest 25 and costs.” 28 U.S.C. § 1332(a). Courts “strictly construe the removal statute against 26 removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The 27 strong presumption against removal jurisdiction means that the defendant always has the 28 burden of establishing that removal is proper.” Id. 1 A removing defendant “must provide evidence establishing that it is more likely 2 than not that the amount in controversy exceeds [$75,000].” Sanchez v. Monumental Life 3 Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (quotation marks omitted). A defendant 4 cannot establish removal jurisdiction by speculation and conjecture. Ibarra v. Manheim 5 Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). Defendant agrees that some $76,000 of 6 the appraisal amount has been paid. 7 The mere possibility of a punitive damages award is insufficient to prove that the 8 amount in controversy requirement has been met. Burk v. Med. Sav. Ins. Co., 348 F. 9 Supp. 2d 1063, 1069 (D. Ariz. 2004). Plaintiff’s complaint does not specify an amount of 10 punitive damages sought, and Plaintiff’s counsel asserts that he has made an overall 11 settlement demand of $65,000. The Court concludes that the claim for punitive damages 12 does not satisfy the amount in controversy requirement. 13 Attorneys’ fees are part of the amount in controversy “if authorized by statute or 14 contract,” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005), but the ultimate 15 amount of recoverable fees in this case is speculative, and such speculation cannot 16 establish the jurisdiction of this Court. See Ibarra, 775 F.3d at 1197. 17 18 19 20 21 22 The Court will not award attorneys’ fees for the removal and remand. The Court concludes that remand could have been accomplished through a reasonable conference between the attorneys after the checks had been received and the removal papers had been filed. The motion to remand and related briefing were entirely unnecessary. IT IS ORDERED that this case is remanded to Maricopa County Superior Court. Dated this 25th day of July, 2017. 23 24 25 26 27 28 -2-

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