Apuakehau v. Mutual of Omaha Insurance Company et al

Filing 18

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO REMAND re 9 - Signed by Judge BARRY M. KURREN on 7/11/12. (emt, )CERTIFICATE OF SERVICEParticipants registered 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 were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CORINA APUAKEHAU,

)
)
Plaintiff,
)
)
vs.
)
)
MUTUAL OF OMAHA
)
INSURANCE COMPANY, ET AL., )
)
Defendants.
)
______________________________ )

Civ. No. 12-00229 SOM-BMK
FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFF’S MOTION TO
REMAND

FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFF'S MOTION TO REMAND
Before the Court is Plaintiff Corina Apuakehau’s Motion to Remand
(Doc. 9). The Court heard this Motion on July 9, 2012. After careful
consideration of the Motion, the supporting and opposing memoranda, and the
arguments of counsel, the Court finds and recommends that Plaintiff’s Motion be
DENIED.
FACTUAL BACKGROUND
On January 27, 2011, Defendant T.B. Lyons conducted a Cancer
Policy sales presentation to Hawaii County Police Officers, including Plaintiff.
(Complaint ¶ 5.) Defendant Lyons stated, among other things, “that the ‘policy
benefit’ of $72,464 (in Plaintiff’s case) would be paid in full.” (Id. ¶ 6.) Plaintiff

purchased the Cancer Policy on February 1, 2012. (Id. ¶ 10.) The “original
application stated that the ‘Base Policy Benefit Amount’ was $72,464.00.” (Id.
¶ 11.)
A few months later, Plaintiff suffered pelvic pain and her doctor
informed her that she had “a type of cancer that invariably kills the person if not
treated.” (Id. ¶ 14.) After having a partial hysterectomy, Plaintiff sought benefits
under the Cancer Policy from Defendant Mutual of Omaha Insurance Company.
(Id. ¶¶ 15, 18.) Her claim for benefits was denied. (Id. ¶¶ 19-20.)
On April 2, 2012, Plaintiff filed this action in state court against
Defendants Lyons and Mutual of Omaha Insurance Company. The Complaint
alleges that Plaintiff “had a right to rely on Lyons when he told the police officers
that they would be paid full policy benefits when their own doctors diagnose
cancer.” (Id. ¶ 22.) She also states that “she would not have purchased the Cancer
Policy” if she knew that she would not get the full policy benefits. (Id. ¶ 26.)
Plaintiff’s Complaint asserts claims for: (1) bad faith, (2) negligent
and/or intentional infliction of emotional distress, (3) breach of contract, (4) unfair
and deceptive trade practices, and (5) negligent or intentional misrepresentation.
She prays for general damages, special damages, compensatory and consequential

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damages, punitive damages, treble damages, pre- and post-judgment interest, and
attorney’s fees and costs.
On May 2, 2012, Defendants removed this case to federal court on the
basis of diversity jurisdiction. Plaintiff now seeks remand, arguing that Defendants
have not met their burden of establishing that the “amount in controversy” exceeds
the jurisdictional threshold of $75,000.
DISCUSSION
I.

The Court Finds and Recommends that Remand be Denied.
Defendants removed this case from state court, asserting in the Notice

of Removal that this Court has diversity of citizenship jurisdiction pursuant to 28
U.S.C. § 1332. Under that statute, “district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). The parties dispute
whether the amount in controversy exceeds $75,000.
In determining the amount in controversy in a removed case, district
courts “consider whether it is ‘facially apparent’ from the complaint that the
jurisdictional amount is in controversy.” Singer v. State Farm Mutual Auto. Ins.
Co., 116 F.3d 373, 377 (9th Cir. 1997). “When it is not facially evident from the
complaint that more than $75,000 is in controversy, a defendant must prove, by a
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preponderance of the evidence, that the amount in controversy exceeds $75,000.”
Miyasato v. Hyatt Corp., CV. NO. 11-00716 JMS-KSC, 2012 WL 874873, at *3
(D. Haw. Feb. 16, 2012) (citing Matheson v. Progressive Specialty Ins. Co., 319
F.3d 1089, 1090 (9th Cir. 2003)). “In other words, a defendant must prove that it
is ‘more likely than not’ that the amount in controversy exceeds $75,000.” Id.
(citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)).
This “burden is not ‘daunting,’ as courts recognize that under this standard, a
removing defendant is not obligated to ‘research, state, and prove the plaintiff's
claims for damages.’” Id. (citation omitted).
“When assessing ‘the amount in controversy, a court must assume that
the allegations of the complaint are true and that a jury will return a verdict for the
plaintiff on all claims made in the complaint.’” Id. (citing Korn, 536 F. Supp. 2d at
1205). “It is the amount placed ‘in controversy by a plaintiff's complaint that is the
ultimate inquiry, not what a defendant will actually owe.” Id. (citing Korn, 536 F.
Supp. 2d at 1205).
Here, the Complaint does not specify the amount of damages sought
in this case. Importantly, however, at the hearing on Plaintiff’s Motion to Remand,
Plaintiff’s counsel conceded that, if Plaintiff prevailed on every claim in the

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Complaint, the amount she would be entitled to does exceed the jurisdictional
threshold of $75,000. The Court agrees with Plaintiff’s counsel.
Plaintiff alleges in the Complaint that Defendant Lyons “represented
to . . . Plaintiff . . . that the ‘policy benefit’ of $72,464 (in Plaintiff’s case) would be
paid in full.” (Complaint ¶ 6.) She further alleges that she “had a right to rely on
Lyons when he told [her] that [she] would be paid full policy benefits.” (Id. ¶ 22.)
Her claims for unfair and deceptive trade practices and misrepresentation assert
that Defendant Lyons promised to “provide[] a ‘Base Policy Benefit Amount’ of
$72,464.” (Id. ¶ 49, 55.) Plaintiff also states in the Complaint that, had she known
she would not receive the full policy benefit of $72,464, “she would not have
purchased the Cancer Policy.” (Id. ¶ 26.) Clearly, Plaintiff seeks the full policy
benefit of $72,464 in damages.
Plaintiff also prays for treble damages. Given that “[t]he proper
measurement of treble damages is simply three times compensatory damages,”
Plaintiff’s prayer for treble damages tips the amount in controversy over the
jurisdictional threshold. See Han v. Yang, 931 P.2d 604, 620 (Haw. Ct. App.
1997). Nevertheless, Plaintiff also prays for punitive damages, attorney’s fees, and
costs. She also asserts in the Complaint that she “suffered stress, loss of time
needed for her own job, [and] health costs” and that she should be awarded “$600
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taken in premium payments from [her] salary.” (Complaint ¶ 44 & Prayer for
Relief.) Based on the foregoing, “the amount placed ‘in controversy by . . .
plaintiff's complaint” exceeds the jurisdictional threshold. See Bix Indus. v. State
Farm Mut. Auto. Ins. Co., CV. NO. 09-01219 AHM-MANx, 2009 WL 764519, at
*2 (C.D. Cal. March 19, 2009) (“the Court finds that it is more likely than not that
if Plaintiff prevails on its second claim for relief it will be awarded punitive
damages greater than the $17,000 gap between the $58,000 it seeks explicitly in its
Complaint and the $75,000 threshold”). Therefore, in light of Plaintiff’s counsel’s
concession at the hearing on this Motion as well as the facts and claims asserted in
the Complaint, the Court finds that Defendants satisfy their burden to “prove that it
is ‘more likely than not’ that the amount in controversy exceeds $75,000.” See
Miyasato, 2012 WL 874873, at *3. Accordingly, the Court recommends that
remand be denied.
II.

The Court Finds and Recommends that Plaintiff’s Request for Fees
and Costs be Denied.
Plaintiff requests fees and costs under 28 U.S.C. § 1447(c), which

provides: “An order remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.”
(Emphasis added). Here, however, the Court recommends that Plaintiff’s Motion
to Remand be denied. Therefore, § 1447(c) does not authorize an award of fees
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and costs to Plaintiff in this case, and the Court recommends that Plaintiff’s request
for fees and costs be denied.
CONCLUSION
For the foregoing reasons, the Court finds and recommends that
Plaintiff’s Motion to Remand be DENIED.
DATED: Honolulu, Hawaii, July 11, 2012.
IT IS SO ORDERED.

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

Apuakehau v. Mutual of Omaha Ins. Co., Inc., et al., Civ. No. 12-00229 SOM-BMK; FINDINGS
AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION TO REMAND.
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