Knight v. Nationwide Insurance Company of America
ORDER - Defendants Motion to Transfer Venue 2 is GRANTED; defendant's Motion to Dismiss 4 is DENIED; and plaintiff's Motion to Remand 10 is DENIED. Signed on 7/12/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
NATIONWIDE INSURANCE COMPANY OF
Case No. 16-CV-01315-W-FJG
Currently pending before the Court is defendant’s Motion to Transfer Venue (Doc.
# 2); defendant’s Motion to Dismiss (Doc. # 4) and plaintiff’s Motion to Remand (Doc. #
On September 21, 2014, plaintiff Douglas Knight was involved in a motor vehicle
accident with Danielle Ely. Knight alleges that Ely was operating her car while under the
influence of alcohol. Knight asserts that Ely’s car crossed the center dividing line, striking
his car head-on, causing him to suffer serious injuries to his head, neck, ear, shoulder
and back. On July 20, 2016, Knight issued a claim for payment of the $100,000 policy
limits of his underinsured motorist (“UIM”) coverage benefits to Nationwide Insurance
Company of America (“Nationwide”). On August 29, 2016, Nationwide denied Knight’s
UIM claim on the basis that the policy did not provide $100,000.00 in UIM coverage.
(Plaintiff’s Petition, Doc. 1-1).
On August 31, 2016, Nationwide filed a Declaratory Judgment Action in the
Eastern District of Missouri (Case No. 4:16CV01401RLW). Nationwide was seeking an
interpretation of an insurance policy that it issued to Knight and a declaratory judgment
defining its rights and obligations to Knight. Nationwide’s claim arose from Knight’s claim
for UIM benefits. Nationwide is seeking a declaration that it does not owe UIM benefits to
Almost a month after Nationwide filed its declaratory judgment action, Knight filed
an action in the Circuit Court of Jackson County, Missouri, on September 21, 2016
against Nationwide asserting claims for breach of contract, vexatious refusal to pay and
declaratory judgment. Knight alleged that his automobile insurance policy shows that he
purchased $100,000 per person limits of underinsured motorist coverage. Knight states
that the policy “promises to provide payment for Mr. Knight’s damages from bodily injury
cause by negligence of an underinsured motorist in excess of the tortfeasor’s insurance
policy limits up to $100,000 per person.” (Complaint, ¶34). Knight also alleges that he
“suffered in excess of $100,000 of damages due to bodily injury and therefore Ms. Ely
was an underinsured motorist.” (Complaint ¶ 35). In Count I of his petition, plaintiff
asserts a breach of contract action against Nationwide. In Count II of his petition, plaintiff
asserts that Nationwide vexatiously refused to pay his claim under the policy. Under this
count, plaintiff seeks judgment against Nationwide for an additional amount as a penalty
not to exceed 20% of the first $1,500 of plaintiff’s damages, 10% of the remainder of
such award and interest. Plaintiff also seeks attorney fees and costs. In Count III of his
petition, plaintiff seeks a declaration that “[t]he limits of liability of underinsured motor
vehicle coverage which are available under the policy sold by Defendant Nationwide
Insurance Company to Plaintiff Douglas Knight are $100,000.” (Complaint – Count III).
Nationwide was served on November 30, 2016 and removed the case to the
Western District of Missouri on December 29, 2016. Nationwide asserts that jurisdiction
is proper as plaintiff is a Missouri resident residing in Hickory County and Nationwide is a
Wisconsin corporation with its principal place of business in Des Moines, Iowa.
Nationwide claims that the amount in controversy has been met because Knight is
seeking the full value of his $100,000 underinsured motorist benefits, has asserted that
Nationwide has vexatiously refused to pay these benefits and is seeking a declaration
that the policy provides coverage in the amount of $100,000.00.
Nationwide states that this action was removed to the Western District of Missouri,
because plaintiff filed his petition in Jackson County, Missouri. However, Nationwide
states that venue in Jackson County is not proper, as the accident occurred in St.
Charles County, Missouri, which is located in the Eastern District of Missouri.
Additionally, Nationwide states that it filed its declaratory judgment action in the Eastern
District of Missouri three weeks before plaintiff filed the present action in Jackson County.
Nationwide has also contemporaneously filed a Motion for a Change of Venue and a
Motion to Dismiss.
Knight has moved to remand stating that he has not requested damages in excess
of $75,000 and has limited his recovery to $75,000 or less. Plaintiff requests leave to
amend his petition to clarify and/or remove the declaratory judgment count if the Court
determines that the amount in controversy requirement is met by this declaratory
Plaintiff is a Missouri resident. Defendant Nationwide is domiciled in Wisconsin
and has its principal place of business in Des Moines, Iowa. Thus, Nationwide is
considered as a citizen of either Wisconsin or Iowa for diversity purposes.
In Bank of America v. Pennington-Thurman, No. 4:15-CV-381 RLW, 2015 WL
5518728 (E.D.Mo. Sept. 17, 2015), the Court noted:
[r]emoval statutes are strictly construed, and any doubts about the
correctness of removal are resolved in favor of state court jurisdiction and
remand. . . . A civil action brought in state court may be removed to the
proper district court if the district court has original jurisdiction of the action.
28 U.S.C.§ 1441(a). Federal district courts have original jurisdiction in all
civil actions between citizens of different states if the amount in controversy
exceeds $75,000.00, exclusive of interest and costs. . . . The party seeking
removal has the burden to establish federal subject-matter jurisdiction,
including the requisite amount in controversy.
Id. at *1 (internal citations omitted).
A. Knight’s Motion to Remand
Knight argues that this case should be remanded because the amount in controversy
requirement has not been met. It is Nationwide’s burden to prove that removal is proper
and that all prerequisites are satisfied. See generally Hatridge v. Aetna Cas. & Sur. Co.,
415 F.2d 809, 814 (8th Cir. 1969). The removal statute is to be narrowly construed, and
any doubt about the propriety of removal is resolved in favor of state court jurisdiction.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed.
1214 (1941); In re Business Men=s Assur. Co. Of America, 992 F.2d 181, 183 (8th Cir.
The Eighth Circuit has held that where a complaint alleges no specific amount of
damages or an amount under the jurisdictional minimum, the removing party Amust prove
by a preponderance of the evidence that the amount in controversy exceeds $75,000.@
In re Minnesota Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th Cir.
2003); Drobnak v. Andersen Corp., 561 F.3d 778, 786 (8th Cir. 2009); James Neff
Kramper Family Farm Partnership v. IBP, Inc., 393 F.3d 828, 831 (8th Cir. 2005); State of
Mo. ex rel. Pemiscot County, Mo. v. Western Sur. Co., 51 F.3d 170, 173 (8th Cir. 1995)
(citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780,
785, 80 L.Ed. 1135 (1936)). To satisfy the preponderance of the evidence standard, the
party seeking removal must offer Asome specific facts or evidence demonstrating that the
jurisdictional amount has been met.@ Hill v. Ford Motor Co., 324 F.Supp. 2d 1028, 1036
(E.D. Mo. 2004). The Court will apply the preponderance standard to this case consistent
with the Eighth Circuit case law.
Knight argues that the case should be remanded because “while the case involves an
insurance policy with a maximum coverage amount of $100,000.00, Plaintiff’s prayer for
relief specifically requests damages of no more than $75,000.00 on all combined counts.”
Alternatively, plaintiff requests leave to amend his petition to clarify and/or remove the
declaratory judgment count.
In Levinson v. Cincinnati Ins. Co., No. 4:13-CV-1595 CAS, 2013 WL 5291772
(E.D.Mo. Sept.19, 2013), the Court stated:
[t]he Supreme Court held in St. Paul Mercury Indemnity Co. v. Red Cab
Co., 303 U.S. 283 (1938), that a plaintiff may prevent removal by
committing to accept less than the federal jurisdictional amount. After a
case has been removed to federal court, however, it is too late for the
plaintiff to foreclose federal jurisdiction by agreeing to collect less than the
jurisdictional amount. Id. at 292-93. The rule from St. Paul Mercury has
consistently been applied to cases in which the petition at the time of
removal expressly stated a claim in excess of the jurisdictional amount, and
therefore, removal jurisdiction had already attached. . . .Plaintiff’s petition in
this case does not expressly state a claim in excess of the jurisdictional
amount. Further, plaintiff now stipulates that her damages do not exceed
and she will not seek an amount greater than $75,000. Where damages are
not specified in a state court complaint, this Court and others in the Eighth
Circuit have considered a post-removal stipulation to determine whether
jurisdiction has attached, as long as the stipulation can be considered as
clarifying rather than amending an original pleading.
Id. at *2 (internal citations and quotations omitted). In Ashworth v. Bristol West Ins. Co.,
No. 4:13CV1599 CDP, 2013 WL 5493420 (E.D.Mo. Oct. 1, 2013), the Court explained:
“[b]ecause Missouri prohibits a plaintiff from seeking a specific amount of damages in his
state court complaint, I may consider post-removal stipulations and pleadings to
determine whether jurisdiction has attached, as long as it clarifies rather than amends an
original pleading.” Id. at *1.
In the instant case, the Court finds that plaintiff is attempting to amend his original
petition and not simply clarifying his allegations. The Complaint filed in state court clearly
states that plaintiff suffered in excess of $100,000 of damages due to his injuries from the
car accident. (Petition, ¶ 35). In addition to his breach of contract claim, plaintiff also
asserted that Nationwide vexatiously refused to pay the claim and is seeking penalties
and attorney fees as a result of this refusal to pay the benefits Knight claimed he was
due. Finally, in the declaratory judgment count, Knight is seeking a declaration that the
limits of the UIM coverage under the policy are $100,000.00. Thus, the Court finds that
defendant has shown by a preponderance of the evidence that the amount in controversy
exceeds the jurisdictional limit. Additionally, the Court notes that the Eastern District of
Missouri in the declaratory judgment action also recently reached the same conclusion
regarding the amount in controversy. In the Eastern District case, Knight challenged
Nationwide’s assertion that the amount in controversy requirement was satisfied. The
Court stated that it would not dismiss the action based on the belated filing of Knight’s
affidavit stating that his claim for UIM benefits did not exceed $75,000.00. The Court
stated that “[p]reviously, Knight made a claim for payment to Nationwide for the full policy
limits of $100,000. Thus the Court holds that Knight’s post-removal attempt to limit his
damages is insufficient to divest this Court of subject matter jurisdiction.” Nationwide
Insur. Co. of America v. Knight, No. 4:16CV01401RLW, 2017 WL 2889487, *3 (E.D.Mo.
July 6, 2017). This Court agrees and therefore DENIES Knight’s Motion to Remand (Doc.
B. Nationwide’s Motion to Transfer Venue/ Motion to Dismiss
Nationwide states pursuant to 28 U.S.C. § 1406(a) or alternatively 28 U.S.C. 1404(a),
the Court should transfer venue of this case to the Eastern District of Missouri, as plaintiff
is a resident of that district, the automobile accident occurred within the Eastern District
and Nationwide has already filed a declaratory judgment action which is currently
pending in that district. In response, plaintiff does not address Nationwide’s transfer
argument, but instead argues only that the jurisdictional minimum has not been met.
28 U.S.C. § 1404(a) – Change of Venue states: “For the convenience of parties
and witnesses, in the interest of justice, a district court may transfer any civil action to any
other district or division where it might have been brought or to any district or division to
which all parties have consented.” 28 U.S.C. § 1406(a) – Cure or waiver of defects
states: “The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.” In Adams v. Smithkline
Beecham Corp., No. 4:15-CV-1829 (CEJ), 2016 WL 469369 (E.D.Mo. Feb. 8, 2016), the
Questions of venue generally are resolved in accordance with 28 U.S.C.
§ 1391. However, when a case is removed from state court to federal court,
the removal statute, 28 U.S.C. § 1441, dictates venue. Polizzi v. Cowles
Magazines, Inc., 345 U.S. 663, 665-66 (1953); see also 28 U.S.C. § 1390
(c)(clarifying that the general venue provisions, including § 1391, “shall not
determine the district court to which a civil action pending in a State court
may be removed”). Section 1441(a) expressly provides that the proper
venue of an action removed from state court is “the district court of the
United States for the district and division embracing the place where such
action is pending.” Id. at 666. Because this case was filed in the Circuit
Court of the City of St. Louis, Missouri and defendant voluntarily removed it
to this Court, the district embracing the City of St. Louis, venue is proper in
the Eastern District of Missouri. . . .Accordingly, section 1404(a) properly
applies to the parties’ request for transfer in this removed action.
Id. at *2 (internal citations omitted). Similarly, in this case, because Nationwide properly
removed this case from Jackson County Circuit Court to the Western District of Missouri,
venue is proper and the Court finds that the Motion to Transfer should be considered
pursuant to 28 U.S.C. § 1404(a). In Adams, the Court noted that under this statute, a
Court is required to evaluate the convenience of the parties and witnesses and the
interests of justice in deciding whether the case should be transferred.
Factors related to the parties’ private interests include relative ease of
access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive. . . .Public-interest factors may include the
administrative difficulties flowing from court congestion; the local interest in
having localized controversies decided at home; [and] the interest in having
the trial of a diversity case in a forum that is at home with the law.
Id. at *2 (internal citations and quotations omitted). In looking at these factors, the Court
is convinced that transfer to the Eastern District of Missouri is warranted. Plaintiff is a
resident of Hickory County, Missouri which is located within the Eastern District, the auto
accident giving rise to this lawsuit occurred in St. Charles County, which is also located
within the Eastern District. Records and witnesses relating to the accident or plaintiff’s
medical treatment would also be located in the Eastern District. Additionally, another
important factor is that the Eastern District is currently handling the related declaratory
judgment action which was first filed by Nationwide on August 31, 2016. Accordingly, the
Court finds that the convenience of the parties and witnesses and the interests of justice
dictate that this case should be transferred to the Eastern District of Missouri pursuant to
28 U.S.C. § 1404(a). Therefore, Nationwide’s Motion to Transfer (Doc. # 2) is hereby
GRANTED and this case is hereby TRANSFERRED to the Eastern District of Missouri.
The Court notes that Nationwide also filed a Motion to Dismiss this case based on
the first-filed rule, however as the Court has now ruled that this case should be
transferred to the Eastern District, the Court hereby DENIES Nationwide’s Motion to
Dismiss (Doc. # 4).
Accordingly, for the reasons stated above, defendant’s Motion to Transfer Venue
(Doc. # 2) is GRANTED; defendant’s Motion to Dismiss (Doc. # 4) is DENIED and
plaintiff’s Motion to Remand (Doc. # 10) is DENIED.
Date: July 12, 2017
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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