Lippia v. Fox Rent A Car

Filing 7

ORDER REMANDING CASE re: 1 Notice of Removal, filed by Fox Rent a Car, Inc. Case REMANDED to the District Court for Denver County. by Chief Judge Marcia S. Krieger on 07/29/2015. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-01539-MSK
SUSAN LIPPIA,
Plaintiff,
v.
FOX RENT A CAR, INC.,
Defendant.

OPINION AND ORDER REMANDING CASE

THIS MATTER comes before the Court sua sponte. The Plaintiff, Susan Lippia,
commenced this case in the District Court for the County of Denver, Colorado. The Complaint
(#5) asserts a claim for premises liability under Colorado law. The Defendant, Fox Rent a Car,
Inc., removed the case to this Court. The Notice of Removal (#1) cites 28 U.S.C. § 1332 as the
basis for this Court’s subject matter jurisdiction.
A civil action is removable only if the plaintiff could have originally brought the action in
federal court. 28 U.S.C. § 1441(a). The Court is required to remand “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. §
1447(c). In this case, removal is premised on diversity jurisdiction under 28 U.S.C. § 1332(a).
Diversity jurisdiction exists when the case involves a dispute between citizens of different states,
and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). As the party invoking
the federal court’s jurisdiction, the Defendant bears the burden of establishing that the

1

requirements for the exercise of diversity jurisdiction are met. See Huffman v. Saul Holdings
Ltd. P’ship, 194 F.3d 1072, 1079 (10th Cir. 1999).
To meet its burden with regard to the amount in controversy requirement, the Defendant
must establish underlying facts by a preponderance of the evidence that would reflect that the
requirement is met. See McPhail v. Deere & Co., 529 F.3d 947, 954-56 (10th Cir. 2007). The
Defendant may refer to facts pled in the state court complaint or may include facts from various
other sources. Id. at 956. For example, a defendant can point to a “plaintiff’s proposed
settlement amount” if the amount reflects a reasonable approximation of a plaintiff’s claim. Id.
Here, the Defendant generally relies on the Plaintiff’s settlement demands to establish the
amount in controversy, but fails to specifically identify them (or their amount) or to attach copies
of documents evidencing them or their amount. Instead, the Defendant makes only one
conclusory statement: “Plaintiff and her counsel maintained through settlement demands and
documents provided to [Defendant] that the amount it would cost to satisfy their demands was
well over $75,000.” Such bare assertion is insufficient to satisfy the evidentiary showing
required. The Defendant declines to attach correspondence that purportedly would contain the
information referenced, believing that FRE 408 prohibits it from doing so, and offers to submit it
for in camera review.
Defendant’s concern with regard to application of FRE 408 is misplaced. Such rule
renders evidence of compromise offers or negotiation inadmissible as evidence only to the extent
it is used to establish the validity or amount of a claim or to impeach testimony as a prior
inconsistent statement. Use of a settlement figure at this point in the litigation is permitted to
establish the amount in controversy, even if Rule 408 would later prohibit its use at trial to
establish liability. Fed. R. Evid. 408(a); see also McPhail, 519 F.3d at 956. Because Rule 408 is

2

inapplicable, there is no need for consideration of correspondence pertaining to the amount in
controversy in camera.
On this record, the Court finds that the Defendant has failed to establish that diversity
jurisdiction exists and the case must be remanded. However, this Order shall be stayed for 14
days in order to allow the Defendant opportunity to supplement the Notice of Removal. Should
the notice not be timely supplemented, the Clerk shall REMAND the case to the District Court
for Denver County.
Dated this 29th day of July, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

3