Roman, Jr. et al v. Travelers Home and Marine Insurance Company et al
Filing
24
ORDER: IT IS ORDERED denying Plaintiffs' Motion to Dispute, Oppose and Dismiss Defendant's Petition for Removal of Action from State Court (Arizona), (Doc. #7 ). IT IS FURTHER ORDERED denying Plaintiffs' Motion for Entering a Default Judgment, (Doc. #15 ). IT IS FURTHER ORDERED denying Plaintiffs' Motion for Court Order to Secure Appearance of a Pro Per Prisoner to Attend Court Ordered Scheduling Conference, (Doc. #14 ) IT IS FURTHER ORDERED granting Plaintiffs' Motion for Leave to Appear Telephonically (Doc. #23 ) at the Rule 16 conference, but Plaintiff will be responsible for arranging the call himself as specified above. Plaintiff shall give a copy of this Order permitting his telephonic appearance to the appropriate staff at the prison to allow his access to the Court. IT IS FINALLY ORDERED that Plaintiff's request to file an independent case management plan (Doc. #22 ) is denied; the parties may exchange and approve a joint case management plan by mail [see attached Order for details]. Signed by Senior Judge James A Teilborg on 9/11/17.(MAW)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Jose Roman, Jr., et al.,
Plaintiffs,
10
11
ORDER
v.
12
No. CV-17-08151-PCT-JAT
Travelers Home and Marine Insurance
Company, et al.,
13
Defendants.
14
15
Pending before the Court are Plaintiffs Jose Roman, Jr. and Stacy Roman’s
16
Motion to Dispute, Oppose and Dismiss Defendant’s Petition for Removal of Action
17
from State Court (Arizona), (“Motion to Remand,” Doc. 7), Motion for Entering a
18
Default Judgment, (“Motion for Default Judgment,” Doc. 15), and Motion for Court
19
Order to Secure Appearance of a Pro Per Prisoner to Attend Court Ordered Scheduling
20
Conference, (“Motion to Attend,” Doc. 14). Defendant Travelers Home and Marine
21
Insurance Company (“Travelers”) has filed responses to Plaintiffs’ Motion to Remand,
22
(Doc. 13), and Motion for Default Judgment, (Doc. 16). Plaintiffs have also filed a
23
Supplement and Affidavit related to their Motion for Default Judgment, (Doc. 17), and
24
Defendant Travelers has filed its Response to the Supplement, (Doc. 18). Finally,
25
Plaintiffs filed a Reply regarding their Motion for Default Judgment. (Doc. 19). The
26
Court now rules on Plaintiffs’ Motions.
27
I.
28
BACKGROUND
Plaintiffs, proceeding pro se, filed the instant Complaint in the Superior Court of
1
Arizona in and for the County of Navajo on or around July 6, 2016. (Doc. 1-1 at 2–14).
2
On July 27, 2017, Defendant Travelers removed the case to this Court, asserting diversity
3
jurisdiction under 28 U.S.C. §§ 1332, 1446 (2012). (See Doc. 1).
4
Plaintiffs’ Complaint appears to allege state law claims for breach of an insurance
5
contract and insurance bad faith against Defendants. (Doc. 1-1 at 2–14). Plaintiffs seek
6
damages against Defendants “[f]or the total principal amount of $77,763.03.” (Id. at 13–
7
14). Defendant Travelers alleges that Plaintiffs are domiciled in Arizona. (Doc. 1 at ¶ 11).
8
Defendant Travelers is “organized and existing under the laws of the State of Connecticut
9
with its principal place of business in the State of Connecticut.” (Id. at ¶ 12). Defendant
10
Alan D. Schnitzer is a resident of New York, and Defendant Brian W. MacLean is a
11
resident of Connecticut. (Doc. 6 at 1). Plaintiffs do not dispute Defendants’ allegations
12
regarding residency or domicile.
13
Following removal, on August 9, 2017, Defendant Travelers filed a Motion to
14
Extend Time to Answer the Complaint. (Doc. 8). In its Motion, Defendant Travelers
15
admitted it had failed to timely respond to Plaintiffs’ Complaint. (See id. at 2). On the
16
same day, the Court denied Defendant Travelers’s Motion, and Defendant Travelers filed
17
its Answer on August 10, 2017. (Doc. 10).
18
II.
MOTION TO REMAND
19
Plaintiffs move to remand this action to state court, where it was initially filed. In
20
support of the Motion to Remand, Plaintiffs argue the following: (1) “Defendant[s] failed
21
to cite in their petition [Federal Rule of Civil Procedure (“Federal Rule”)] 81 as the
22
basis” for removal, (Doc. 7 at 2–3); (2) “The State of Arizona Court[s] have jurisdiction
23
on this [C]omplaint,” (id. at 3–4); (3) Removal to federal court is a hardship because
24
Plaintiff Jose Roman, Jr. is currently incarcerated with the Arizona Department of
25
Corrections, (id. at 7–10, 12–13); and (4) Plaintiffs have reevaluated their claimed
26
damages and now only seek $60,000.00 in damages, (id. at 10–12). Defendant Travelers
27
asserts that removal was proper. (Doc. 13).
28
///
-2-
1
A.
2
Plaintiffs first argue that the Court should grant their Motion to Remand because
3
Defendant Travelers failed to cite Federal Rule 81 in its Notice of Removal. (Doc. 7 at 2–
4
3). Defendant Travelers argues that Federal Rule 81 does not affect a defendant’s right to
5
remove a case. (Doc. 13 at 1–2). The Court agrees with Defendant Travelers.
Federal Rule 81
6
Federal Rule 81 “specifies the action and proceedings to which the [Federal] Rules
7
do or do not apply or to which they apply only to a limited extent.” 12 Charles A. Wright,
8
Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 3131, at 542
9
(3d ed. 2014). While Federal Rule 81(c) covers the procedure used for cases following
10
removal to federal court, Federal Rule 81 does not provide the basis for removal. See Fed.
11
R. Civ. P. 81(c).
12
Here, Defendant Travelers’s right to remove the instant case to this Court was not
13
impeded by its failure to cite Federal Rule 81. Because Federal Rule 81 details the
14
procedure involved in a case after it is removed to federal court, Plaintiffs are incorrect in
15
arguing that Federal Rule 81 provides a basis for removal. Even if the Court construes
16
Plaintiffs’ assertions as an argument that Defendant Travelers has failed to follow Federal
17
Rule 81 following removal, Plaintiffs have failed to identify any particular deficiency;
18
furthermore, a failure to follow Federal Rule 81 does not provide a basis to remand a case
19
to state court. Thus, Plaintiffs’ argument involving Federal Rule 81 fails.
20
B.
21
Next, Plaintiffs argue that because Arizona state courts have jurisdiction over this
22
matter, Defendant Travelers is prohibited from removing the case to federal court.
23
(Doc. 7 at 3–4). In other words, Plaintiffs argue that federal court diversity jurisdiction
24
does not exist.
State Court Jurisdiction
25
By federal statute, “any civil action brought in a State court of which the district
26
courts of the United States have original jurisdiction, may be removed by the defendant
27
or the defendants, to the district court of the United States for the district and division
28
embracing the place where such action is pending.” 28 U.S.C. § 1441(a). United States
-3-
1
district courts “have original jurisdiction of all civil actions where the matter in
2
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
3
between . . . [c]itizens of different States.” 28 U.S.C. § 1332(a)(1).
4
Here, diversity jurisdiction exists for this case. Plaintiffs have alleged over
5
$75,000.00 in damages, and the opposing parties are citizens of different states. To the
6
extent Plaintiffs argue that complete diversity of citizenship does not exist because
7
Defendant Travelers “had an office located in Phoenix,” (Doc. 7 at 5), an office in a state
8
does not mean that a corporation is a citizen of that state. See Hertz Corp. v. Friend,
9
559 U.S. 77, 80–81 (2010) (holding that a corporation’s “principal place of business” for
10
diversity jurisdiction purposes “will typically be found at a corporation’s headquarters”).
11
Thus, the Court finds Plaintiffs’ arguments unpersuasive.
12
C.
13
Plaintiffs next argue that because Plaintiff Jose Roman, Jr. is incarcerated in a
14
state prison located in Northern Arizona, both Plaintiffs and the federal government will
15
face a hardship. (Doc. 7 at 7–10, 12–13). In particular, Plaintiffs assert that Plaintiff Jose
16
Ramon, Jr. “is a chronic care medical patient and the cost of medical services are able to
17
be reimbursed by the state to the Navajo County Sheriff’s Office” pursuant to state law.
18
(Id. at 8–9). Plaintiffs also cite unspecified “problems that will result in prisoner
19
transport, housing for months or years[,] . . . and medical costs that will be placed upon
20
the federal court.” (Id. at 9–10).
Economic Hardships
21
Plaintiffs have failed to cite—and the Court is unaware of—any authority allowing
22
a federal court’s diversity jurisdiction to be defeated by allegations of hardship litigating
23
in federal court. Rather, federal courts have held the contrary. See, e.g., Weinrib v.
24
Greenspan, No. 85 C 6079, 1985 WL 3751, at *2 n.3 (N.D. Ill. Nov. 8, 1985)
25
(“[E]conomic hardship in no way shows a lack of diversity jurisdiction and is not itself
26
grounds for dismissal. (It can support a motion to transfer, but not where the movant is a
27
resident of the forum.)”). Here, purported economic hardships related to the costs of
28
transportation, housing, and medical costs are insufficient to defeat this Court’s diversity
-4-
1
jurisdiction.
2
D.
3
Finally, Plaintiffs argue that they have reevaluated their asserted damages and
4
Amount in Controversy
purport to lower “their sought sum of $77,763.03 to . . . $60,000.00.”1 (Doc. 7 at 11).
5
“In measuring the amount in controversy, a court must assume that the allegations
6
in the complaint are true and assume that a jury will return a verdict for the plaintiff on all
7
claims made in the complaint.” Forever Living Products U.S. Inc. v. Geyman,
8
471 F. Supp. 2d 980, 986 (D. Ariz. 2006) (citations omitted). Further, courts refuse to
9
entertain “post hoc attempt[s] to disavow some of the damages alleged in [a]
10
[c]omplaint.” Id.
11
Here, Plaintiffs—albeit inconsistently—make a post hoc attempt to disavow some
12
of the damages they alleged in the Complaint. Plaintiffs’ Complaint seeks damages of
13
$77,763.03, which is the sum of the $41,763.03 that Defendants allegedly underpaid
14
Plaintiffs related to the “dwelling policy limit” and $36,000.00 for boarding fees. (See
15
Doc. 1-1 at 4, 8). Because Plaintiffs’ alleged damages are greater than $75,000.00, this
16
case meets the amount-in-controversy requirement for diversity jurisdiction.
17
Because this case meets the requirements for diversity jurisdiction and Defendant
18
Travelers properly removed this case to this Court, the Court denies Plaintiffs’ Motion to
19
Remand.
20
III.
MOTION FOR DEFAULT JUDGMENT
21
Plaintiffs also filed a Motion for Default Judgment, which argues that Defendant
22
Travelers’s failure to timely answer the Complaint following removal to federal court
23
demonstrates “good cause” for the Court to enter default judgment against Defendant
24
Travelers.2 (Doc. 15 at 2–3). Defendant Travelers argues Plaintiffs have failed to follow
25
1
26
27
The Court notes that, after filing their response stating they seek to lower the
amount of damages sought in this action, Plaintiffs filed an affidavit, in which Plaintiff
Jose Ramon, Jr. reasserts that Plaintiffs seek $77,763.03 from Defendants. (Doc. 17 at 6).
2
28
The Court notes that it is unclear, but Plaintiffs do not appear to seek a default
judgment against Defendants Schnitzer and MacLean. (See Doc. 15). Plaintiffs admit—
and the Court’s record reflects—Plaintiffs have not yet served Defendants Schnitzer and
-5-
1
Federal Rule 55(a), Plaintiffs have not alleged prejudice, and default judgment is an
2
“extreme remedy.” (Doc. 16).
3
Federal Rule 55(b)(2) provides the two-step process for the Court to enter default
4
judgment against a party. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).
5
Before a party can obtain a default judgment from the Court under Federal Rule 55(b),
6
the Clerk of the Court must enter default as provided in Federal Rule 55(a). 10A, Charles
7
A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2682,
8
at 10–11 (4th ed. 2016); see also Skinner v. Ryan, No. CV-12-1729-PHX-SMM (LOA),
9
2014 WL 99030, at *1 (D. Ariz. Nov. 15, 2008) (“Before a default judgment can be
10
entered by the court, the party must move the court to direct the entry of default in
11
accordance with [Federal] Rule 55(a) and default must be entered by the clerk.”
12
(quotation marks and citation omitted)).
13
Here, Plaintiffs failed to seek an entry of default when Defendant Travelers failed
14
to timely answer Plaintiffs’ Complaint. Rather, Plaintiffs moved directly for default
15
judgment. Because Plaintiffs failed to secure an entry of default before moving for
16
default judgment, the Motion for Default Judgment is inappropriate. Moreover, although
17
it is within the Court’s discretion to enter default judgment, Aldabe v. Aldabe,
18
616 F.2d 1089, 1092 (9th Cir. 1980), the Court declines to enter default judgment now
19
that Defendant Travelers is fully participating in the litigation. Thus, the Court denies
20
Plaintiffs’ Motion for Default Judgment.
21
IV.
MOTION TO ATTEND
22
Finally, Plaintiffs filed a Motion to Attend, asking the Court to “secure” Plaintiff
23
Jose Roman, Jr.’s appearance for the September 27, 2017 Federal Rule 16 scheduling
24
conference. (Doc. 14). Plaintiffs alternatively ask the Court to “order the Arizona
25
Department of Corrections (central office or administrative office) to facilitate” the
26
ability for Plaintiff Jose Roman, Jr. to appear telephonically at the scheduling conference.
27
28
MacLean with process. (See Doc. 7 at 3–4). Therefore, even if Plaintiffs move for entry
of a default judgment against Defendants Schnitzer and MacLean, such a motion is
improper.
-6-
1
(Id. at 4).
2
Stacy Roman will be required to attend the Rule 16 conference. Jose Roman may
3
appear at the Rule 16 conference telephonically by calling into the Court at 602-322-7560
4
at the time of the conference; but Mr. Roman will be responsible for making his own
5
arrangements to make such call. The Court will not have Mr. Roman transported for the
6
conference.
7
V.
CONCLUSION
8
Based on the foregoing,
9
IT IS ORDERED denying Plaintiffs’ Motion to Dispute, Oppose and Dismiss
10
11
12
Defendant’s Petition for Removal of Action from State Court (Arizona), (Doc. 7).
IT IS FURTHER ORDERED denying Plaintiffs’ Motion for Entering a Default
Judgment, (Doc. 15).
13
IT IS FURTHER ORDERED denying Plaintiffs’ Motion for Court Order to
14
Secure Appearance of a Pro Per Prisoner to Attend Court Ordered Scheduling
15
Conference, (Doc. 14)
16
IT IS FURTHER ORDERED granting Plaintiffs’ Motion for Leave to Appear
17
Telephonically (Doc. 23) at the Rule 16 conference, but Plaintiff will be responsible for
18
arranging the call himself as specified above. Plaintiff shall give a copy of this Order
19
permitting his telephonic appearance to the appropriate staff at the prison to allow his
20
access to the Court.
21
IT IS FINALLY ORDERED that Plaintiff’s request to file an independent case
22
management plan (Doc. 22) is denied; the parties may exchange and approve a joint case
23
management plan by mail.
24
Dated this 11th day of September, 2017.
25
26
27
28
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?