Moser v. The Cincinnati Insurance Company

Filing 16

ORDER granting in part and denying in part 14 Motion to Remand to State Court. This case is REMANDED to the Sixth Judicial Circuit in and for Pinellas County, Florida, for all further proceedings. The Clerk is directed to mail a certified copy of this Order to the Clerk of the Sixth Judicial Circuit, Pinellas County, Florida. Plaintiff's request for an award of attorneys' fees and costs is DENIED and the Clerk is directed to terminate all pending motions and close this file.Signed by Judge Charlene Edwards Honeywell on 2/12/2015. (AEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NICOLE MOSER,
Plaintiff,
v.

Case No: 8:14-cv-03121-CEH-TWG

THE CINCINNATI INSURNACE
COMPANY, a Foreign Profit Corporation,
Defendant.
ORDER
This cause comes before the Court on Plaintiff’s Motion for Remand to State Court (Doc.
14), and Defendant’s response thereto (Doc. 15), which included a Motion to Serve Limited
Discovery. The Court, having considered the motions and being fully advised in the premises, will
grant in part and deny in part Plaintiff’s Motion to Remand, and deny Defendant’s Motion to Serve
Limited Discovery.
I.

Background
On or about November 18, 2014, Plaintiff Nicole Moser (“Moser”) filed this action in the

Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida seeking damages as
a result of a car accident that occurred on September 29, 2011. At the time of the accident, Moser
was insured by Defendant, The Cincinnati Insurance Company. Moser’s coverage included
Uninsured/Underinsured Motorist Coverage. Moser alleges that Defendant has failed to make
reasonable efforts to resolve her claim.
On December 16, 2014, Defendant removed the instant action to this Court pursuant to 28
U.S.C. § 1446. See Doc. 1.

Defendant alleges that this Court has original subject matter

jurisdiction pursuant to 28 U.S.C. § 1332 because there is diversity of citizenship and the matter
in controversy exceeds $75,000. See id.
II.

Standard of Review
A defendant may remove a civil action from state court to the district court of the United

States for the district and division within which such action is pending, provided that the district
court has jurisdiction. 28 U.S.C. § 1441(a). Diversity jurisdiction exists where the suit is between
citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).
The party seeking removal bears the burden of proving proper federal jurisdiction. Leonard v.
Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002).
“Where a plaintiff fails to specify the total amount of damages demanded . . . a defendant
seeking removal based on diversity jurisdiction must prove by a preponderance of the evidence
that the amount in controversy exceeds the $75,000 jurisdictional requirement.” Id. “To determine
whether this standard is met, a court first examines whether it is facially apparent from the
complaint that the amount in controversy exceeds the jurisdictional requirement. . . . If the
jurisdictional amount is not facially apparent from the complaint, the court should look to the
notice of removal and may require evidence relevant to the amount in controversy at the time the
case was removed.” Miedema v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (internal
citations and quotations omitted). “[R]emoval statutes are construed narrowly; where plaintiff and
defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” Williams v. AFC
Enterprises, Inc., 389 F.3d 1185, 1189 (11th Cir. 2004) (quotations omitted).
III.

Discussion
The Complaint in this action states only that it is an action for damages in excess of

$15,000. Doc. 2 at ¶ 1. Thus, it is not facially apparent from the complaint that the amount in
controversy exceeds the jurisdictional requirement. Defendant’s basis for asserting that the amount

2

in controversy exceeds $75,000 is that the insurance policy limit is $100,000.00 for each person
and that a pre-suit demand letter offered to settle the matter for the policy limit of $100,000.00.
See Doc. 1.
Although pre-suit demand letters can be used to support the amount in controversy, they
are not dispositive. Lamb v. State Farm Fire Mut. Auto. Ins. Co., No. 3:10-CV-615-J-32JRK, 2010
WL 6790539, at *2 (M.D. Fla. Nov. 5, 2010). Instead, to determine whether the amount in
controversy is satisfied, courts have analyzed whether demand letters merely “reflect puffing and
posturing,” or whether they provide “specific information to support the plaintiff's claim for
damages” and thus offer a “reasonable assessment of the value of [the] claim.” Id. at *2 (citing
Jackson v. Select Portfolio Servicing, Inc., 651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009)).
According to Defendant, on December 20, 2013 – eleven months before filing this action
– Moser’s counsel sent Defendant a letter that concluded with the following statement: “In the
event that we do NOT receive a draft in the amount of the available Uninsured/Underinsured
Motorist policy limit in the amount of $100,000.00 payable to our client and our firm, jointly, we
will immediately serve a summons, complaint and initial discovery.” Doc. 1 ¶ 10. 1 There is no
indication that this demand was based on any calculation of actual damages. Thus, this allegation
is not sufficient to establish amount in controversy for purposes of federal diversity jurisdiction.
Plaintiff, on the other hand, alleges that her current medical bills total only $17,043.62 and
that her most recent, post-suit, demand letter offered to settle all claims for less than $75,000. See
Doc. 14-5. Plaintiff also notes that she has already received $25,000 from the other driver’s
insurance company which would offset any liability of the Defendant in this action. Defendant was
informed of this payment in December of 2013. See Doc. 14-4. Thus, Defendant’s exposure here

1

Defendant did not provide a copy of this letter to the Court.

3

appears to be exactly $75,000 (i.e. the $100,000 policy limit minus the $25,000 offset). The
diversity jurisdiction statute requires an amount in controversy “exceeds the sum or value of
$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a) (emphasis added).
Defendant requests the opportunity to conduct discovery on the amount in controversy
before this matter is remanded. Given Plaintiff’s assertions in her motion, it seems such discovery
would be futile. Furthermore, this Court will not permit discovery in a case over which it does not
have jurisdiction. Any such discovery should be conducted in state court.
Plaintiff has requested an award of attorneys’ fees and costs incurred as a result of
Defendant’s improper removal of this action. Under 28 U.S.C. § 1447(c), a remand order “may”
require the payment of just costs and actual expenses incurred as a result of the removal. Id. “The
word ‘may’ clearly connotes discretion. The automatic awarding of attorney's fees to the prevailing
party would pretermit the exercise of that discretion.” Martin v. Franklin Capital Corp., 546 U.S.
132, 136 (2005). Where an objectively reasonable basis for removal exists, the Court should deny
a request for attorney's fees. Id.
The Supreme Court has established a standard to guide district courts in deciding whether
to award attorney's fees and costs upon remand. "[T]he standard for awarding fees should turn on
the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's
fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied."
Id. at 141. The Eleventh Circuit has noted that the reasonableness standard enunciated by the
Supreme Court was meant to balance “‘the desire to deter removals sought for the purpose of
prolonging litigation and imposing costs on the opposing party, while not undermining Congress’
basic decision to afford defendants a right to remove as a general matter, when the statutory criteria

4

are satisfied.’” Bauknight v. Monroe County, Fla., 446 F.3d 1327, 1329 (11th Cir. 2006) (quoting
Martin, 546 U.S. at 140). Thus, "there is no indication that a trial court should ordinarily grant an
award of attorney's fees whenever an effort to remove fails.” Kennedy v. Health Options, Inc., 329
F. Supp. 2d 1314, 1319 (S.D. Fla. 2004).
Plaintiff argues that because Defendant had no evidence to support an amount in
controversy in excess of $75,000 and relied primarily on a pre-suit demand letter from over a year
ago without conducting any discovery in state court regarding potential damages, this removal was
unreasonable.
Defendant argues that Plaintiff has not shown bad faith and should be denied fees because
she did not seek agreement from Defendant before filing the motion to remand. Defendant is
correct that Plaintiff failed to comply with Local Rule 3.01(g). Defendant indicates that it would
have agreed to remand if Plaintiff would have stipulated that the value of her claim is less than
$75,000. It is unknown whether conferral would have resulted in the elimination of this motion
practice. But in light of Plaintiff’s failure to even attempt such conferral and the fact that a trial
court should not ordinarily grant an award of attorney’s fees when an effort to remove fails, the
Court will not award costs and fees. Accordingly, it is
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Remand to State Court and Incorporated Memorandum of Law
(Doc. 14) is GRANTED in part and DENIED in part;
2. Defendant’s Motion to Serve Limited Discovery (Doc. 15) is DENIED;
3. This case is REMANDED to the Sixth Judicial Circuit in and for Pinellas County,
Florida, for all further proceedings;

5

4. The Clerk is directed to mail a certified copy of this Order to the Clerk of the Sixth
Judicial Circuit, Pinellas County, Florida;
5. Plaintiff’s request for an award of attorneys’ fees and costs is DENIED; and
6. The Clerk is directed to terminate all pending motions and close this file.
DONE and ORDERED in Tampa, Florida on February 12, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

6