Carrasco et al v. Shieh

Filing 6

ORDER REMANDING CASE to the Adams County District Court, by Judge Marcia S. Krieger on 04/27/2010. (wjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 10-cv-00818-MSK BARBARA CARRASCO; and RUEBEN CARRASCO, Plaintiffs, v. MOSES SHIEH, D.O., Defendant. ORDER REMANDING CASE THIS MATTER comes before the Court sua sponte. The Plaintiffs commenced this action in the Adams County District Court. Plaintiffs allege that Defendant, in error, told Plaintiffs that Plaintiff Barbara Carrasco had breast cancer. In reliance on that information, Plaintiff Barbara Carrasco underwent a bilateral mastectomy. A later detailed review of a pathology report indicated that Plaintiff Barbara Carrasco did not have breast cancer. Plaintiffs have filed claims for professional negligence, lack of informed consent that no cancer was present and loss of consortium. In their Complaint, the Plaintiffs did not request any particular monetary relief. In the Notice of Removal, the Defendant asserts that this Court can exercise jurisdiction based upon diversity pursuant to 28 U.S.C.§ 1332. The Defendant relies primarily upon the Plaintiffs' election in the mandatory Colorado Civil Cover Sheet stating: "This party is seeking a monetary judgment for more than $100,000 against another party, including any attorney fees, penalties or punitive damages, but excluding interest and costs[.]"

In accordance with the analysis set forth in Baker v. Sears Holding Corp., 557 F. Supp. 2d 1208 (D. Colo. 2007), there has been an insufficient showing of the requisite amount in controversy to establish diversity jurisdiction. Accordingly, the action must be remanded to the State Court. See 28 U.S.C. § 1447(c). IT IS THEREFORE ORDERED that this action is REMANDED to the Adams County District Court. DATED this 27th day of April, 2010. BY THE COURT:

Marcia S. Krieger United States District Judge

2