Baglan v. Kemper Insurance Company et al
Filing
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MEMORANDUM OPINION re 13 Order on Motion to Remand to State Court,. Signed by Glen H. Davidson on 10/29/12. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DEL TA DIVISION
PLAINTIFF
CHARLES E. BAGLAN
CIVIL ACTION NO.2: 12-CV -00053-GHD-SAA
v.
KEMPER INSURANCE COMPANY and
UNITRIN AUTO AND HOME INSURANCE COMPANY
DEFENDANTS
MEMORANDUM OPINION DENYING PLAINTIFF'S MOTIONS TO REMAND
Presently before this Court are Plaintiffs motion to remand the case to state court [7] and
Plaintiffs supplemental motion to remand the case to state court [11]. Upon due consideration,
the Court is of the opinion that the motions are not well taken.
A. Factual and Procedural Background
On February 16, 2012, Plaintiff Charles E. Baglan ("Plaintiff') filed a complaint in the
Circuit Court of the Second Judicial District of Panola County, Mississippi, against Defendants
Kemper Insurance Company and Unitrin Auto and Home Insurance Company ("Defendants") to
recover for hail damage to his vehicle.
It is undisputed that on or about April 28, 2011,
Plaintiff's automobile, a 2008 GMC Yukon Denali, sustained hail damage. Plaintiff alleges that
this vehicle was covered under an insurance policy with Kemper Insurance Company and that he
filed a hail damage claim, which Kemper Insurance Company subsequently denied. Plaintiff
further alleges that Defendants' actions in denying the claim constitute "bad faith," a "heightened
tort," and "an unreasonable, arbitrary[,] and capricious denial of insurance benefits due and
owing to Plaintiff." Plaintiff avers that Defendants have "exhibit[ed] a willful and wanton act or
t
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gross disregard" for Plaintiffs rights as an insured. Plaintiff further avers that he has suffered
negligent or intentional infliction of emotional distress as a result, and he seeks compensatory
and punitive damages in an unspecified amount.
Defendants timely removed this case to this Court on the basis of diversity jurisdiction
and then filed their answer and affirmative defenses. Plaintiff subsequently filed a motion to
remand [7] the case to state court, and Defendants filed a response to the same. Plaintiff then
filed a supplemental motion to remand [II], and Defendants filed a response to the same. These
matters are now ripe for review.
B. Standard ofReview
The removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed by
the defendant or the defendants, 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). A case may be remanded upon a motion filed within thirty days after the
filing of the notice of removal on any defect except subject matter jurisdiction, which can be
raised at any time by any party or sua sponte by the court. See Wachovia Bank, NA. v. PICC
Prop. & Cas. Co. Ltd., 328 F. App'x 946, 947 (5th Cir. 2009). "If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. § 1447(c). Any "doubts regarding whether removal jurisdiction is proper
should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335,339
(5th Cir. 2000).
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C. Discussion
Federal diversity jurisdiction requires complete diversity between all plaintiffs and all
defendants and an amount in controversy that exceeds $75,000.00. See 28 U.S.C. § I 332(a). In
the case sub judice, there is no question that complete diversity exists between Plaintiff and
Defendants. The only issue is whether the amount in controversy meets the jurisdictional
threshold.
Plaintiff argues that its complaint falls below the jurisdictional threshold and thus that
removal is not proper. Plaintiff attaches an affidavit to his motion to remand in which he asserts
that he will not seek a judgment for more than $70,000.00.
Plaintiff later clarifies in his
supplement to the motion to remand that "he is not seeking a judgment in excess of $70,000.00,
which would include punitive or any other damages." Plaintiff argues that as a result this Court
lacks subject matter jurisdiction and should remand the case to state court.
A district court enjoys diversity jurisdiction over "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 amount in controversy is determined at the time of removal. Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). If a defendant establishes "by a preponderance
of the evidence that the amount in controversy is greater than the jurisdictional amount," a
plaintiff may defeat removal only by establishing to a legal certainty that his or her recovery will
not exceed the statutory threshold. In re 1994 Exxon Chem. Fire, 558 F.3d 378, 387 (5th Cir.
2009) (quotation marks and citation omitted). A plaintiff may try to establish "legal certainty"
by submitting with his complaint a "binding stipulation or affidavit" that states the plaintiff seeks
less than the jurisdictional threshold and will not accept an award that exceeds the jurisdictional
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threshold. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995) (quoting In re Shell
Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam)).
Courts generally begin the amount-in-controversy analysis by "look[ing] only to the face
of the complaint and ask[ing] whether the amount in controversy exceeds" the jurisdictional
threshold. Ervin v. Sprint Commc 'ns Co. LP, 364 F. App'x 114, 117 (5th Cir. 2010) (quoting
s.ws. Erectors, Inc. v. In/ax, Inc., 72 F.3d 489,492 (5th Cir. 1996)).
In the case sub judice, the
complaint's ad damnum clause provides that Plaintiff seeks compensatory damages and punitive
damages. However, nowhere does the complaint specify the amount of damages sought, nor
does the complaint attempt to specifY that Plaintiff seeks less than the jurisdictional threshold.
Plaintiff has stated in an affidavit attached to his motion to remand, as well as his supplement to
his motion to remand, that he will not accept more than $70,000.00, and that this includes both
compensatory and punitive damages. Although this would appear to establish Plaintiffs goodfaith willingness to accept an amount less than the jurisdictional threshold, it does not establish
anything about the amount in controversy on the face of the complaint.
When, as in the case sub judice, 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 jurisdictiomil amount"; in this analysis, the court may
rely on "summary judgment-type" evidence to determine the amount in controversy. See Garcia
v. Koch Oil Co. a/Tex., Inc., 351 F.3d 636, 638-39 (5th Cir. 2003); St. Paul Reinsurance Co.,
Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citations omitted); De Aguilar v. Boeing
Co., 11 F.3d 55, 57-58 (5th Cir. 1993). Defendant argues that because Plaintiff's complaint
seeks an unspecified amount of damages, including punitive damages, Plaintiffs complaint
meets the jurisdictional threshold and this Court has diversity jurisdiction over the matter.
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Plaintiff asserts a claim for negligent infliction of emotional distress or intentional infliction of
emotional distress, as well as a "bad faith" insurance claim, and seeks compensatory and punitive
damages for his suffering. The Court finds that Defendant has met its burden of establishing by
a preponderance of the evidence that the amount in controversy exceeded the jurisdictional
amount at the time of removal. Therefore, remand is not appropriate in this case.
D. Conclusion
In sum, Plaintiff's motion to remand to state court [7] and Plaintiff's supplemental
motion to remand to state court [11] are DENIED.
An order in accordance with this opinion shall issue this day.
p.
THIS, the~ day of October, 2012.
SENIOR JUDGE
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