McNamee v. Alfa Mutual General Insurance Company et al

Filing 22

ORDER granting 6 Motion to Remand; denying as moot 13 Motion to Dismiss; denying as moot 16 Motion for Extension of Time to Serve Process Signed by Honorable David C. Bramlette, III on January 11, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
FRANCES McNAMEE

PLAINTIFF

v.

CAUSE NO. 3:17-CV-496-DCB-LRA

ALFA MUTUAL GENERAL INSURANCE COMPANY,
LARRY HOOD, and JOHN DOES A-E

DEFENDANTS

ORDER AND OPINION
This cause is before the Court on a Motion to Remand [Doc. 6]
filed by Plaintiff Frances McNamee, a Motion to Dismiss [Doc. 13]
filed by Defendant Larry Hood, and a Motion for Extension of Time
to Serve Process [Doc. 16] filed by McNamee. Having considered the
motions, the parties’ responses, and applicable statutory and case
law, and being otherwise fully informed in the premises, the Court
finds as follows:
I.
Frances

McNamee

sued

BACKGROUND
her

car

insurer,

Alfa

Insurance

Corporation (“Alfa”), and a local insurance agent, Larry Hood, in
state court. McNamee and Hood are Mississippi citizens; Alfa is an
Alabama corporation.
Alfa removed the case to this Court, invoking diversity
jurisdiction and contending that Hood, the non-diverse forumdefendant, was improperly joined.

The Court agreed that Hood was improperly joined, but held
that the amount in controversy was ambiguous as of the date Alfa
removed

the

affidavit

case.

limiting

[Doc.
her

18]

In

recovery

response,

McNamee

to

the

below

offers

an

jurisdictional

minimum of $75,000, exclusive of interest and costs. [Doc. 20-1]
II.
The

Court

may

consider

DISCUSSION
McNamee’s

post-removal

affidavit

because the amount in controversy was ambiguous as of the date
Alfa removed the case. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d
880, 883 (5th Cir. 2000). And given this ambiguity, McNamee’s
affidavit clarifies —— rather than impermissibly modifies —— the
jurisdictional

facts

as

of

the

date

of

removal.

St.

Paul

Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1254 n. 18 (5th Cir.
1998).
Remand is warranted when a plaintiff submits a binding postremoval affidavit clarifying that the amount in controversy was
not

met

as

of

the

date

of

removal.

Asociacion

Nacional

de

Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC) v.
Dow Quimica de Colombia, S.A., 988 F.2d 559, 566 (5th Cir. 1993),
abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145
F.3d 211 (5th Cir. 1998).
McNamee has submitted an affidavit; the question is whether
it is binding. A post-removal affidavit is binding if, in it, the
2

plaintiff

renounces

her

ability

to

recover

more

than

the

jurisdictional minimum in state court. See, e.g., Bienemy v. Hertz
Corp., 16-15413, 2016 WL 6994200, at *3 (E.D. La. 2016); McGlynn
v. Huston, 693 F. Supp. 2d 585, 593 (M.D. La. 2010); (stipulation
must

state

that

plaintiff

will

not

accept

more

than

the

jurisdictional minimum if awarded that amount in state court);
Printworks, Inc. v. Dorn Co., 869 F. Supp. 436, 440 (E.D. La. 1994)
(same).
In her affidavit, McNamee swears that she neither seeks nor
will accept a sum exceeding the jurisdictional minimum. [Doc. 201]. This statement is binding. And in fact, it operates as a
judicial admission precluding McNamee from seeking or recovering
damages greater than the jurisdictional minimum in state court.
Arnold v. State Farm Fire and Cas. Co., 277 F.3d 772, 775 n. 3
(5th Cir. 2001).
McNamee’s affidavit is binding and clarifies that the amount
in controversy was not met when Alfa removed this case. The Court
lacks jurisdiction, and remand is required. See Drinkard v. Murphy
Oil USA, Inc., 3:04-CV-303-CWR, 2014 WL 10475642, at *2 (S.D. Miss.
2014); (ordering remand after considering post-removal affidavit);
Lewis v. Charley Carriers, Inc., 5:09-CV-170-DCB, 2010 WL 1409997,
*3 (S.D. Miss. 2010) (same); F.M.B. v. Mega Life & Health Ins.

3

Co., 3:08-CV-530-DPJ, 2009 WL 426435, at *2 (S.D. Miss. 2009)
(same).
Accordingly,
IT IS HEREBY ORDERED that the Motion to Remand [Doc. 6] filed
by Plaintiff Frances McNamee is GRANTED;
FURTHER ORDERED that the Motion to Dismiss [Doc. 13] filed by
Defendant Larry Hood is DENIED AS MOOT.
FURTHER ORDERED that the Motion for Extension of Time to Serve
Process [Doc. 16] filed by Plaintiff Frances McNamee is DENIED AS
MOOT.
A separate Order of Remand transferring this case to the First
Judicial District of the Hinds County Circuit Court shall issue
this day.
SO ORDERED, this the 11th day of January, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

4