Johnson v. Moncher et al

Filing 27

ORDER denying 16 Motion to Remand to State Court. Entered by Judge Philip A. Brimmer on 04/29/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03052-PAB-KLM
VANESSA JOHNSON,
Plaintiff,
v.
SAFECO INSURANCE COMPANY OF AMERICA,
Defendant.

ORDER

This matter is before the Court on the Motion to Remand to State Court [Docket
No. 16] filed by plaintiff Vanessa Johnson. The matter is fully briefed and ripe for
disposition.
Plaintiff initiated this action on December 6, 2013 in the District Court for the
County of Pueblo, Colorado, where it was filed as Case No. 2013CV30993 (the “state
court action”). Docket No. 1-1 at 1. The action was initially brought against two
defendants, defendant Safeco Insurance Company of America (“Safeco”) and Betsy
Moncher. Id. Ms. Moncher and plaintiff were both residents of Colorado. Id. ¶¶ 1-2.
On November 5, 2014, the District Court for the County of Pueblo, Colorado granted
plaintiff’s unopposed motion to dismiss Ms. Moncher. Docket No. 1-3 at 1-2. Safeco
filed a Notice of Removal on November 12, 2014, one week after the dismissal of Ms.
Moncher from the state court action. See Docket No. 1.
“Under 28 U.S.C. § 1441 a defendant in state court may remove the case to

federal court when a federal court would have had jurisdiction if the case had been filed
there originally.” Topeka Housing Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir.
2005). A notice of removal must contain “a short plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.” 28 U.S.C. § 1446(a). As grounds for removal,
Safeco stated that plaintiff is a resident of Colorado, while Safeco is a foreign
corporation organized under the laws of the State of New Hampshire. Docket No. 1 at
3, ¶ 5. Safeco further stated that, in plaintiff’s second claim for relief, she alleged that
her “claims have a reasonable value in excess of the [insurance] policy limits of
$100,000.” Id. ¶ 6. Safeco further notes that plaintiff’s second claim for relief is a
statutory bad faith claim brought pursuant to Colo. Rev. Stat. §§ 10-3-1115 and 10-31116, and that, if successful, plaintiff could recover two times the covered benefit plus
reasonable attorney’s fees and court costs. Id.; see also Colo. Rev. Stat. § 10-31116(1). Finally, Safeco points out that plaintiff’s most recent settlement offer
exceeded $75,000. Id. Thus, because there is complete diversity between the parties
and the amount in controversy exceeds $75,000, Safeco claimed that the Court has
jurisdiction pursuant to 28 U.S.C. § 1332(a). Docket No. 1 at 3, ¶¶ 6-7.
Plaintiff challenges the sufficiency of Safeco’s statement of the grounds for
removal. Specifically, plaintiff argues that defendants are required in a notice of
removal to show sufficient facts to establish that the amount in controversy requirement
of 28 U.S.C. § 1332(a) is satisfied. Docket No. 16 at 2, ¶ 5 (citing McPhail v. Deere &
Co., 529 F.3d 947 (10th Cir. 2008)). Plaintiff does not introduce evidence that the

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amount in controversy is less than $75,000 or state that the am ount in controversy is
less than $75,000, but instead argues only that the issue of whether the value of this
action exceeds $75,000 is “a matter of pure speculation.” Docket No. 16 at 3.
After the briefing on plaintiff’s motion concluded, the Supreme Court decided
Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547 (2014). In Dart
Cherokee, the Supreme Court held that “when a defendant seeks federal-court
adjudication, the defendant’s amount-in-controversy allegation should be accepted
when not contested by the plaintiff or questioned by the court.” 135 S.Ct. at 553. In
other words, all that is required is a “short and plain statement of the grounds for
removal,” including “a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold.” Id. at 551, 554. Unless the allegations of the amount in
controversy are contested, that is the end of the matter. Id. at 550 (providing that “[i]n
the event that the plaintiff does contest the defendant’s allegations, both sides submit
proof and the court decides, by a preponderance of the evidence, whether the amountin-controversy requirement has been satisfied”).
Here, plaintiff does not argue that the amount in controversy does not exceed
$75,000, but instead contests Safeco’s evidence in support of the amount in
controversy allegation in the notice of removal. See Docket No. 16. Plaintiff’s motion
does not require the Court to order both sides to submit evidence. See Roa v. TS
Staffing Servs., Inc., 2015 WL 300413 at *2 (C.D. Cal. Jan. 22, 2015) (finding that,
because Dart Cherokee held that removing defendants need not introduce evidence in
the notice of removal, a challenge to the jurisdictional basis for removal that “does not

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contest the allegations themselves, but instead contests [defendant’s] evidence in
support of the allegations” was groundless).
The Court finds that the notice of removal satisfies Section 1446(a)’s
requirement in that it contains a short, plain statement of the grounds for removal.
Specifically, Safeco notes that plaintiff’s complaint alleges that her claims exceed the
policy limit of $100,000 and that plaintiff’s statutory bad faith claim, if successful, would
entitle her to an award of “two times the covered benefit” of her policy, plus attorneys’
fees. Docket No. 1 at 3, ¶ 6; see also Colo. Rev. Stat. § 10-3-1116 (1) (“A first-party
claimant . . . whose claim for payment of benefits has been unreasonably delayed or
denied may bring an action in a district court to recover reasonable attorney fees and
court costs and two times the covered benefit”). Moreover, plaintiff made a settlement
demand of $100,000. Docket No. 16 at 2, ¶ 4. Saf eco’s allegation that the amount in
controversy exceeds $75,000 is sufficiently plausible to satisfy the requirements of
Section 1446(a). See Roadcap v. Auto-Owners Ins. Co., No. 14-cv-01897-PAB-CBS,
2014 WL 3952802 at *2 (D. Colo. Aug. 12, 2014) (denying remand where plaintiff
brought a statutory bad faith claim under Colo. Rev. Stat. § 10-3-1115 and § 10-3-1116
and alleged that her policy limit was $100,000).
Wherefore, it is
ORDERED that plaintiff Vanessa Johnson’s Motion to Remand to State Court
[Docket No. 16] is DENIED.

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DATED April 29, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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