Pepper v. Mutual of Omaha Insurance Co

Filing 17

ORDER re 10 Rule 26(f) Report, filed by Mutual of Omaha Insurance Co. Accordingly, within the next 14 days from the date of this order, removing defendant shall file a memorandum, together with supporting evidence, sufficient to establish tha t the requisite jurisdictional amount was in controversy at the time of removal. Plaintiff may submit a response (and evidence) within 7 days thereafter, as needed. If defendant fails to comply, or if subject matter jurisdiction is found to be lack ing, then the matter will be remanded to state court. The Court further observes that the notice of removal does not allege the organizational structure of citizenship of defendant Mutual of Omaha Insurance Company. Accordingly, within the next sev en days from the date of this order, removing defendant is granted leave of court to file an amended notice of removal which establishes the citizenship of the parties for purposes of diversity. Signed by Magistrate Judge Karen L Hayes on 3/31/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
VICKI PEPPER

*

CIVIL ACTION NO. 15-2830

VERSUS

*

JUDGE ROBERT G. JAMES

MUTUAL OF OMAHA INSURANCE
COMPANY

*

MAG. JUDGE KAREN L. HAYES

ORDER
On December 15, 2015, defendant Mutual of Omaha Insurance Company removed this
matter to federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, which requires
complete diversity of citizenship between the adverse parties and an amount in controversy
greater than $75,000. See Notice of Removal. “The removing party bears the burden of showing
that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)
(citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253-54 (5th Cir. 1961)).
When, as here, the state court petition seeks a money judgment, but state law does not
permit a demand for a specific sum, then the removing defendant(s) may assert the amount in
controversy in its notice of removal, which “should be accepted when not contested by the
plaintiff or questioned by the court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.
Ct. 547, 554 (2014); 28 U.S.C. § 1446(c)(2)(A). Here, however, the court is unable to determine
whether the amount in controversy exceeded the jurisdictional minimum at the time of removal.1
Accordingly, within the next 14 days from the date of this order, removing defendant
1

Plaintiff seeks benefits under an accidental death insurance policy, plus penalties and
fees for defendant’s arbitrary failure to pay same. (Petition). Neither the petition, nor the notice
of removal, however, sets forth the amount payable under the policy.

shall file a memorandum, together with supporting evidence, sufficient to establish that the
requisite jurisdictional amount was in controversy at the time of removal. Plaintiff may submit a
response (and evidence) within 7 days thereafter, as needed. If defendant fails to so comply, or if
subject matter jurisdiction is found to be lacking, then the matter will be remanded to state court.
The court further observes that the notice of removal does not allege the organizational
structure or citizenship of defendant Mutual of Omaha Insurance Company.2 If defendant is a
corporation, then the “allegations of citizenship must set forth the state of incorporation as well
as the principal place of business of the corporation.” Getty Oil, Div. Of Texaco v. Ins. Co. of
North America, 841 F.2d 1254, 1259 (5th Cir. 1988) (emphasis added). Simply alleging that a
corporation is a “foreign insurer” or that its principal place of business is not in a given state,
without affirmatively alleging where that principal place of business is, does not suffice to
establish jurisdiction. See Getty Oil, supra; see also Illinois Cent. Gulf R. Co. v. Pargas, Inc.,
706 F.2d 633, 636 & n2 (5th Cir.1983) (the basis upon which jurisdiction depends must be
alleged affirmatively and distinctly and cannot be established argumentatively or by mere
inference).
Alternatively, if defendant is an unincorporated association, then the citizenship of each
member must be alleged and considered. See Carden v. Arkoma Assocs., 494 U.S. 185, 195–96,
110 S.Ct. 1015, 1021–22 (1990) (holding that the citizenship of an unincorporated entity or
association is based upon the citizenship of each of its members).
Accordingly, within the next seven days from the date of this order, removing defendant

2

Although the notice also fails to allege the citizenship of plaintiff, the court may glean
this information from the petition.
2

is granted leave of court to file an amended notice of removal which establishes the citizenship of
the parties for purposes of diversity. See 28 U.S.C. §1653. If defendant fails to so comply, or if
subject matter jurisdiction is found to be lacking, then the matter will be remanded to state court.
IT IS SO ORDERED.
In Chambers, at Monroe, Louisiana, this 31st day of March 2016.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

3