Virchinsky v. Mutual of Omaha Insurance Co.

Filing 19

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO REMAND CASE BACK TO FIRST CIRCUIT COURT STATE OF HAWAII 6 . Signed by Judge BARRY M. KURREN on 2/16/2012. (afc)CERTIFICATE OF SERVICEParticipants regis tered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on February 17, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHESTER S. VIRCHINSKY,

)
)
Plaintiff,
)
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vs.
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MUTUAL OF OMAHA
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INSURANCE CO.,
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)
Defendant.
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______________________________ )

Civ. No. 12-00025 DAE-BMK
FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFF’S MOTION TO
REMAND CASE BACK TO FIRST
CIRCUIT COURT STATE OF
HAWAII

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO
REMAND CASE BACK TO FIRST CIRCUIT COURT STATE OF HAWAII
Before the Court is Plaintiff Chester S. Virchinsky’s Motion to
Remand Case Back to First Circuit Court State of Hawaii (Doc. 6). The Court
heard this Motion on February 13, 2012. After careful consideration of the
Motion, the supporting and opposing memoranda, and the arguments presented at
the hearing, the Court finds and recommends that Plaintiff’s Motion be DENIED.
On December 20, 2011, Plaintiff filed this action against Defendant
Mutual of Omaha Insurance Company. On January 13, 2012, Defendant removed
this case to federal court on the basis of diversity jurisdiction. Plaintiff now seeks
to remand this case back to state court.

In his Motion to Remand, Plaintiff argues that this Court lacks
diversity jurisdiction over this case because (1) the parties are not diverse and
(2) the amount in controversy does not exceed $75,000. Plaintiff also seeks
attorney’s fees incurred in preparing his Motion.
First, Plaintiff argues that the parties are not diverse because Plaintiff
and Defendant are both citizens of the Hawaii. For diversity of citizenship
purposes, “a corporation is a citizen of (1) the state under whose laws it is
organized or incorporated; and (2) the state of its ‘principal place of business.’”
Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009). “[A]
corporation’s principal place of business is the state containing ‘a substantial
predominance of corporate operations.’” Id.
According to Michael Huss, Defendant’s Senior Vice President,
Defendant was incorporated under the laws of Nebraska and its principal place of
business is Mutual of Omaha Plaza, Omaha, Nebraska. (Declaration of Michael
Huss ¶ 3.) That is where Defendant’s “officers direct, control and coordinate
Mutual’s activities.” (Id.) That is also Defendant’s “headquarters” and “nervecenter of operations.” (Id.) Although Defendant has a district sales office in
Hawaii, the Hawaii office “is neither the headquarters nor principal place of
business of [Defendant], but is merely a branch sales office.” (Id.) Based on
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Michael Huss’s declaration, Defendant is a citizen of Nebraska. Because Plaintiff
is a citizen of Hawaii, the Court finds that the parties are completely diverse.
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (for complete
diversity, “each of the plaintiffs must be a citizen of a different state than each of
the defendants”).
Second, Plaintiff contends that the amount in controversy does not
exceed $75,000. “[T]he amount in controversy is determined from the face of the
pleadings.” Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000).
Here, Plaintiff’s Complaint prays for “$60,000.00 for breach of contract” and
“$1,000,000 general damages.” Based on the face of the Complaint, the amount in
controversy clearly exceeds $75,000. Therefore, the jurisdictional amount is met,
and this Court finds that it has diversity jurisdiction over this case. See id.
(“District courts have [diversity] jurisdiction in civil actions where there is
complete diversity of citizenship among the parties and the amount in controversy
exceeds $75,000, exclusive of interest and costs.”)
Lastly, Plaintiff seeks attorney’s fees incurred in preparing his
Motion. Because Plaintiff is representing himself and proceeding pro se, the Court
finds that he is not entitled to recover attorney’s fees. Kay v. Ehrler, 499 U.S. 432,

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435 (1991) (“a pro se litigant who is not a lawyer is not entitled to attorney’s
fees”).
Accordingly, in light of this Court’s findings that it has diversity
jurisdiction over this case and that Plaintiff is not entitled to attorney’s fees, the
Court recommends that Plaintiff’s Motion to Remand be DENIED.
DATED: Honolulu, Hawaii, February 16, 2012.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Virchinsky v. Mutual of Omaha Ins. Co., Civ. No. 12-00025 DAE-BMK; FINDINGS AND
RECOMMENDATION TO DENY PLAINTIFF’S MOTION TO REMAND CASE BACK TO
FIRST CIRCUIT COURT STATE OF HAWAII.
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