McCollum v. Motorists Mutual Insurance Company

Filing 6

MEMORANDUM OPINION AND ORDER: It is ORDERED that this case is REMANDED to the Madison Circuit Court and the case shall be STRICKEN from the Court's active docket. Signed by Judge Joseph M. Hood on 12/5/2011.(SCD)cc: COR,Madison CC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LOWELL T. MCCOLLUM,

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) Civil Action No. 5:11-CV-370-JMH
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) MEMORANDUM OPINION AND ORDER
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Plaintiff,
v.
MOTORISTS MUTUAL INSURANCE
COMPANY,
Defendant.
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On November 17, 2011, Defendant filed a Notice of Removal [DE
1], removing the above-referenced matter from Madison Circuit
Court, alleging that this Court has original jurisdiction pursuant
to

28

U.S.C.

§

1332.

Because

of

Defendant’s

failure

to

demonstrate, in its Notice of Removal, that the statutory amountin-controversy

requirement

is

satisfied,

the

Court

ordered

Defendant to show cause why this matter should not be remanded to
state court.

[DE 3].

Defendant has filed its Response [DE 5] to

the Court’s Order and this matter is now ripe for decision.

For

the following reasons, this matter shall be remanded to state
court.

See 28 U.S.C. § 1447(c).

A defendant seeking to remove a case to federal court has the
burden of showing, by a preponderance of the evidence, that the
amount in controversy exceeds $75,000.

See Hayes v. Equitable

Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001); 28 U.S.C. §
1332. When a plaintiff seeks to recover an unspecified amount that

is “not self-evidently greater or less than the federal amount-incontroversy requirement,” a defendant can remove the case only by
showing that the claim “more likely than not” exceeds the statutory
requirement.

Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th

Cir. 1993), overturned on other grounds by Hertz Corp. v. Friend,
-U.S.-,

130

S.Ct.

1181

(2010).

While

proof

within

a

legal

certainty is not required, Id., the removing defendant must provide
competent proof that the requirement is met.

Cleveland Hous.

Renewal Project v. Deutsche Bank & Trust Co., 621 F.3d 554, 559
(6th Cir. 2010).

In its Response, Defendant failed to offer

additional proof of an amount in controversy exceeding $75,000.
While the Court agrees that pre-removal requests for admission may
serve as competent proof, the admission upon which Defendant relies
does not constitute such proof.

Plaintiff’s admission that his

damages do not exceed $75,000.00, so long as attorney’s fees are
not included, is not the same as an admission that his damages do
exceed

$75,000.1

Further,

as

the

Court

has

already

noted,

Plaintiff’s previous demand of less than $7,000 suggests that the
amount in controversy was less than $75,000.01 at the time of
removal.

[See DE 3, p. 3].

Defendant’s proffered evidence does not show that, more likely
than not, the amount in controversy in this matter exceeds $75,000.

1

The Court has no opinion as to whether Plaintiff’s
affidavit constitutes a stipulation, particularly in light of the
absence of the Court’s jurisdiction to further consider the case.
2

Accordingly, it is hereby ORDERED that this case is REMANDED to the
Madison Circuit Court and the case shall be STRICKEN from the
Court’s active docket.
This the 5th day of December, 2011.

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