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)

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-