Houston, Dickerson & Dickerson, Inc. v. Nationwide Property and Casualty Insurance Company
ORDER denying 9 Motion to Remand and denying as moot 6 Motion to Remand. Plaintiff has (10) days from the Order to file a responsive pleading to Defendant's complaint. Signed by Honorable Robert T. Dawson on July 8, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
HOUSTON, DICKERSON & DICKERSON, INC.
d/b/a HARVEST FOODS OF CLARKSVILLE
NATIONWIDE PROPERTY AND CASUALTY
Currently before the Court are Plaintiff’s First Amended
Defendant’s Response (doc. 11).
Plaintiff disputes the existence
of jurisdiction as the amount in controversy does not exceed
For the reasons that follow, Plaintiff’s Amended Motion
to Remand (doc. 9) is DENIED.
Plaintiff’s original motion to
remand (doc. 6) is DENIED AS MOOT.
Generally, the district courts of the United States are
“courts of limited jurisdiction.
They possess only that power
authorized by Constitution and statute.”
Exxon Mobil Corp. v.
courts must strictly construe the federal removal statute, and
resolve any ambiguities about federal jurisdiction in favor of
Transit Casualty Co. v. Certain Underwriters at Lloyd’s
of London, 119 F.3d 619, 625 (8th Cir. 1997).
A defendant in
state court may remove the case to federal court if the defendant
can demonstrate that the federal court has original jurisdiction
over the case.
28 U.S.C. § 1441(a).
This requirement is met in
one of two ways; i.e., (1) the case in question involves a
federal question, or (2) diversity jurisdiction exists.
case where the plaintiff’s pleadings do not allege a federal
question “the matter in controversy [must exceed] the sum or
value of $75,000, exclusive of interest and costs, and [must
involve] citizens of different states.”
28 U.S.C. § 1332(a).
The party invoking federal jurisdiction must prove the requisite
amount by a preponderance of the evidence.
James Neff Kramper
Family Farm P’ship v. IBP, Inc., 393 F.3d 828, 831 (8th Cir.
This rule applies even in a removed case where the party
invoking jurisdiction is the defendant.
In the present
case, it is not disputed that diversity of citizenship exists and
the only issue is whether the $75,000 statutory minimum is met.
Plaintiff filed its Complaint against Defendant on or about
March 21, 2013, in the Circuit Court of Johnson County, Arkansas,
(Case No. CV-2013-34) alleging a breach of contract by failure to
pay an alleged indisputable loss under the insurance policy after
a demand had been made; pursuant to Ark. Code Ann. 23-79-208
Defendant removed the action to this Court asserting the
Plaintiff filed an Amended Motion to Remand (doc. 9)
contending that Defendant failed to demonstrate the amount-incontroversy was satisfied.
Plaintiff contends the contractual
damages of $62,271.79, together with the 12% penalty of $7,472.62
($73,580.47) and stipulated attorneys’ fees of $1,419.50 totals
Defendant states the stipulated amount of attorneys’ fees has no
legal affect, and when reasonably calculated with all damages
sought, the amount-in-controversy easily exceeds the $75,000.00
Amount in Controversy
[defendant] has the burden of establishing federal subject matter
McNutt v. General Motors Acceptance Corp., 298
U.S. 178, 189, (1936); Hatridge v. Aetna Casualty & Surety Co.,
415 F.2d 809, 814 (8th Cir. 1969); In re Business Men’s Assurance
Company of America, 992 F.2d 181, 183 (8th Cir. 1993).
diversity case, where the complaint alleges no specific amount of
removing party must prove by a preponderance of the evidence that
the amount in controversy exceeds $75,000.
See In re Minnesota
Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th
The statutory award of attorney fees does count
toward the jurisdictional minimum for diversity jurisdiction.”
Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 766 (8th Cir.
Likewise, the 12% statutory penalty may also be included
Peacock & Peacock, Inc. v. Stuyvesant Ins. Co., 332 F.2d
499, 502 (8th Cir. 1964).
The United States Supreme Court held that a post removal
stipulation reducing damages below the $75,000.00 threshold may
not defeat federal subject matter jurisdiction.
St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938).
State Farm Fire and Casualty Insurance Co., 2010 WL 379643 (W.D.
Ark., Jan. 27, 2010).
Therefore, though the Plaintiff is the
“master of his complaint and his choice of forum should not
easily be disturbed,” the Plaintiff may not stipulate fees in
order to defeat subject matter jurisdiction.
St. Paul, 303 U.S.
"clarification" of the unspecified amount of requested attorneys'
established in St. Paul.
(Doc. 1, pg. 4).
However, it is clear
that Plaintiff's stipulation is a "change" in the amount sought
by the Plaintiff in order to defeat jurisdiction and is therefore
void of legal effect.
Bell v. Hershey Co., 557 F.3d 953 (8th
Cir. 2009); ANPAC v. Dow Quimica de Columbia, 988 F.2d 559, 565
(9th Cir. 1993).
A defendant may defeat the Plaintiff’s Motion to Remand by
establishing that the amount in controversy exceeds $75,000 by a
preponderance of the evidence.
Haynes v. Louisville Ladder Grp.,
LLC, 341 F. Supp. 2d 1064, 1067 (E.D. Ark. 2004).
establish by a preponderance of the evidence that attorneys’ fees
will come to at least $1,419.54.
Fees for services already
rendered must be taken into consideration as well as a reasonable
calculation for future attorneys’ fees.
Feller v. Hartford Life
& Acc. Ins. Co., 817 F. Supp. 2d 1097, 1105 (S.D. Iowa 2010).
together with a reasonable estimate of fees for services to be
performed throughout the remainder of the legal proceedings, it
is reasonable to conclude the amount in controversy will exceed
The Court finds Defendant has proved by a preponderance of
the evidence that the amount in controversy exceeds $75,000.
Accordingly, Plaintiff’s Amended Motion to Remand (Doc. 9) is
Plaintiff’s original Motion to Remand (doc. 6) is
DENIED AS MOOT.
Plaintiff has (10) days from the Order to file a
responsive pleading to Defendant’s complaint.
IT IS SO ORDERED this 8th day of July, 2013.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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