Simon v. State Farm Mutual Automobile Insurance Company et al

Filing 19

ORDER denying 5 Motion to Remand to State Court. Signed by District Judge Sharion Aycock on 10/29/18. (jla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ALFREDA SIMON

PLAINTIFF

V.

CIVIL ACTION NO. 1:18-CV-00028-SA-DAS

STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY

DEFENDANT

ORDER
Alfreda Simon originally filed this case in the Circuit Court of Lowndes County,
Mississippi against State Farm Mutual Automobile Insurance Company, alleging that State Farm
breached its insurance contract in bad faith. Simon amended her complaint on February 21, 2018.
See Amended Complaint [2]. State Farm removed the case to this Court on February 21, 2018.
See Notice of Removal [1]. Presently before the Court is the Plaintiff’s Motion to Remand [5] the
case back to the Circuit Court.
Factual Background
On October 14, 2014, the Plaintiff’s car was struck in the rear by an unidentified driver on
7th Avenue North in Columbus, Mississippi. After the Columbus Police Department conducted
an investigation, the Plaintiff submitted a claim to her insurance company, Defendant State Farm.
Specifically, the Plaintiff sought medical pay coverage for the cost of her therapy with Rehab at
Work. According to the Plaintiff, after negotiations and correspondence between the two parties,
the Defendant agreed to pay the outstanding bill owed to Rehab at Work. The bill was never paid
by the Defendant. The Plaintiff now requests remand and the Defendant opposes.
Standard for Remand
The Judiciary Act of 1789 provides that “any civil action brought in a State court of which
the districts of the United States have original jurisdiction, may be removed by the defendant, to

the district court of the United States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). Federal courts are courts of limited jurisdiction. Epps v.
Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir.
1982). Diversity jurisdiction exists “where the matter in controversy exceeds the sum or value of
$75,000.00, exclusive of interest and cost, and is between . . . citizens of different states.” 28 U.S.C.
§ 1332(a); Addo v. Globe Life and Accidents Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000). After
removal of a case, a plaintiff may move for remand, and “[i]f it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
Once a motion to remand has been filed, the burden is on the removing party to establish
that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). The
Fifth Circuit has held that the removal statutes are to be construed “strictly against removal and
for remand.” Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-9, 61 S.Ct. 868, 85 L. Ed. 1214 (1941).
Analysis and Discussion
The Plaintiff objects to the Notice of Removal as untimely and argues that the claim does
not satisfy the requisite amount in controversy.
In support of this argument, she first contends that the removal notice should have been
filed within thirty days after the filing of the initial complaint. Federal procedure, specifically 29
U.S.C. § 1446(b), squarely addresses this issue. A removal notice “shall be filed within thirty days
after the receipt by the defendant, through service or otherwise, a copy of the [complaint].” 28
U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347, 119 S.Ct.
1322, 143 L.Ed. 2d 448 (1999). Thus, the time for removal runs from the time of service, not
filing.

2

Here, although the initial Complaint [4] was filed on October 12, 2017, the Amended
Complaint [2] was filed on November 20, 2017. Service was not perfected on the Defendant until
February 6, 2018, making March 6, 2018 the deadline to file a Notice of Removal. See Defendant’s
“Exhibit A” Notice of Service of Process. The Defendant filed its Notice of Removal [1] on
February 21, 2018, well within the deadline. Therefore, the Notice of Removal was properly and
timely filed with the Court.
The Plaintiff argues next that the amount in controversy does not exceed the requisite
$75,000 exclusive of interest and cost. See 28 U.S.C. § 1332(a). The Plaintiff asserts that because
the complaint does not specify the amount of relief sought, the amount in controversy is merely
speculative.
“When a complaint does not allege a specific amount of damages, the party invoking
federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy
exceeds the jurisdictional amount.” Safeco Ins. Co. of Indiana v. Kamat, 846 F. Supp. 2d 755, 758
(S.D. Tex. 2012) (citing St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th
Cir. 1998)). “The district court must first examine the complaint to determine whether it is ‘facially
apparent’ that the claims exceed the jurisdictional amount.” Judd v. Fountainbleau Management
Services, LLC, 2011 WL 2654239, at *3 (N.D. Miss. July 6, 2011). “The defendant may prove that
amount either by demonstrating that the claims are likely above $75,000 in sum or value, or by
setting forth the facts in controversy that support a finding of the requisite amount.” Luckett v.
Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (quoting Allen v. R & H Oil & Gas Co., 63
F.3d 1326, 1335 (5th Cir.), reh’g denied, 70 F.3d 26 (5th Cir. 1995)); Simon v. Wal-Mart Stores,
Inc., 193 F.3d 848, 850 (5th Cir. 1999).

3

The Plaintiff’s Complaint [2] request both compensatory and punitive damages for
intentional infliction of emotional distress, mental anguish, and medical bills. The Plaintiff
contends that her losses are permanent and continuous. In its calculation, the Court must consider
damages suffered as a result of the alleged intentional infliction of emotional distress, mental
anguish, and medical bills. In addition to compensatory damages, the Court considers punitive
damages in its determination. The Fifth Circuit made clear that when calculating the amount in
controversy, punitive damages should be included. St Paul Reinsurance Co. Ltd., 134 F.3d at 1253.
Even if the claimed damages, absent punitive damages, would not reach the jurisdiction
minimum, a claim for punitive damages alone may be enough to establish the requisite amount in
controversy. The court in Myers v. Guardian Life Ins. Co. of America, Inc., found that considering
the plaintiff’s punitive damages claim alone, it was facially apparent that the amount in controversy
exceeded $75,000 exclusive of interest and cost. 5 F. Supp. 2d 423, 428 (N.D Miss. 1998). To that
end, the Court finds it facially apparent that the amount in controversy exceeds the requisite
statutory amount.
Conclusion
Remand in diversity cases is improper where there is complete diversity and the amount in
controversy exceeds $75,000 exclusive of interest and cost. The Defendant has successfully
established the jurisdictional requirements for diversity jurisdiction. The Court finds the removal
timely and proper and the Plaintiff’s Motion to Remand [5] is DENIED.
So ORDERED on this the 29th day of October, 2018.
/s/ Sharion Aycock
UNITED STATES DISTRICT COURT JUDGE

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