Hersh et al v. Economy Premier Assurance Company

Filing 6

ORDER REMANDING CASE to the Boulder County District Court from which the case was removed. by Chief Judge Wiley Y. Daniel on 4/2/09. (erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel Civil Action No. 09-cv-00519-WYD JESSICA HERSH, individually and as mother and next friend of Raphael McPhee, a minor, Plaintiffs, v. ECONOMY PREMIER ASSURANCE COMPANY, Defendant. ORDER OF REMAND THIS MATTER is before the Court on the Notice of Removal (docket #1), filed March 10, 2009. By way of background, this action is an underinsured motorist claim for injuries allegedly sustained by Plaintiff Jessica Hersh, resulting in the premature birth of her son, Raphael McPhee. On March 10, 2009, Defendant filed a Notice of Removal asserting that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332(a)(1). Defendant asserted therein that the amount in controversy requirement was satisfied. Further, Defendant asserted that at all relevant times, the Plaintiff was a resident of Colorado while the Defendant is an Illinois Corporation with its principal place of business in the State of Illinois. After carefully reviewing the pleadings, I find that this case must be remanded based on the failure of the Defendant to show that the amount in controversy is

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satisfied. The amount in controversy is ordinarily determined by the allegations of the complaint, or, where they are not dispositive, by the allegations in the notice of removal. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001); Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). If the jurisdictional amount is not shown by the allegations of the complaint, "[t]he burden is on the party requesting removal to set forth, in the notice of removal itself, the `underlying facts supporting [the] assertion that the amount in controversy exceeds [$75,000].'" Laughlin, 50 F.3d at 873 (quotation omitted). In other words, the amount in controversy must be affirmatively established on the face of either the petition or the notice of removal. Id. The removal statute is construed narrowly. Martin, 251 F.3d at 1289. In this case, the allegations of the complaint do not show that the amount in controversy exceeds $75,000, as required to establish diversity jurisdiction. 28 U.S.C. § 1332(a)(1). In fact, the only dollar amounts mentioned in the complaint refer to policy limits on various insurance policies. Thus, I turn to the notice of removal. The notice of removal references the civil cover sheet filed in state court contemporaneously with the complaint which represents that "this action involves an amount in controversy exceeding $75,000.00. Plaintiffs have demanded damages in excess of $100,000.00." (Notice of Removal at 2) (citing Civil Cover Sheet, Exhibit C, ¶ 2). That is the only allegation in the notice of removal regarding the amount in controversy. I find that the Notice of Removal and the reference therein to the civil cover sheet filed in state court are not sufficient to establish that the jurisdictional amount is satisfied. A number of cases from this Court have held that reliance solely on the civil -2-

cover sheet filed in state court to establish the jurisdictional amount is insufficient, and I incorporate their reasoning herein. See Baker v. Sears Holding Corp., No. 07-cv01106-MSK-MEH, 2007 WL 2908434 at * 3-4 (D. Colo. 2007); Ralph v. SNE Enterprises, Inc., No. 07-cv-01163-WDM-MJW, 2007 WL 1810534 at *1 (D. Colo. 2007); Hardin v. Sentinel Ins. Co., Ltd., 490 F. Supp. 2d 1134, 1135-36 (D. Colo. 2007); Bishelli v. State Farm Mut. Automobile Ins. Co., No. 07-cv-00385-WYD-MEH, 2007 WL 1455852 at *3 (D. Colo. 2007); Dean v. Illinois Nat. Ins. Co., 07-cv-01030-MSK-MJW, 2007 WL 2937014 at *1 (D. Colo. 2007). Guided by the strong presumption against removal of civil actions to federal court based on diversity jurisdiction and the fact that it appears that the Court lacks subject matter jurisdiction over this action, I find that this matter must be remanded to the State Court. See 28 U.S.C. § 1447(c). Accordingly, it is ORDERED that the Clerk of Court is directed to REMAND this action to the Boulder County District Court from which the case was removed. Dated: April 2, 2009 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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