Lynch v. Geico Indemnity Company

Filing 7

ORDER that Defendant is granted 20 days to establish the minimum amount in controversy for federal jurisdiction. Plaintiff is granted 10 days to file an opposition. No reply is required. Signed by Judge Larry R. Hicks on 10/26/12. (Copies have been distributed pursuant to the NEF - EDS)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** ) ) ) ) ) ) ) ) ) ) ) 9 NICHOLAS LYNCH, 10 Plaintiff, 11 v. 12 GEICO INDEMNITY COMPANY, et al., 13 Defendants. 2:12-cv-01818-LRH-PAL ORDER 14 15 Plaintiff, Nicholas Lynch, initiated this action in the Eighth Judicial District Court for Clark 16 County, Nevada. On October 17, 2012, on the basis of diversity jurisdiction, Defendant Geico 17 Indemnity Company (hereafter “Defendant”) filed a notice of removal to this court (#11 ). 18 After review of the first amended complaint and Defendant’s petition for removal, the court 19 finds that it requires more evidence to determine whether it has subject matter jurisdiction over this 20 case. While it appears that the parties are of diverse citizenship,2 Defendant has not demonstrated 21 that the amount in controversy exceeds $75,000. 22 23 “[A]ny 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 . . . to the district court of the United 24 25 1 26 2 Refers to the court’s docket entry number. Plaintiff is a c itizen of Nevada and Defendant Geico Indemnity Company is incorporated under the law s of Maryland and has its principal place of business in Maryland. 1 States for any district . . . where such action is pending.” 28 U.S.C. § 1441(a). Among other 2 reasons, the district courts of the United States have “original jurisdiction” where there is diversity 3 of citizenship between the parties and the amount in controversy, exclusive of interest and costs, 4 exceeds $75,000. 28 U.S.C. § 1332(a). 5 “If . . . it appears that the district court lacks subject matter jurisdiction, the case shall be 6 remanded.” 28 U.S.C. § 1447(c). “Federal jurisdiction must be rejected if there is any doubt as to 7 the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 8 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). Moreover, the 9 removal statute is construed restrictively and in favor of remanding a case to state court. See 10 11 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus, 980 F.2d at 566. After a defendant files a petition for removal, the court must determine whether federal 12 jurisdiction exists, even if no objection is made to removal. See Rains v. Criterion Systems, Inc., 13 80 F.3d 339, 342 (9th Cir. 1996). The defendant always has the burden of establishing that 14 removal is proper. Gaus, 980 F.2d at 566. Normally this burden is satisfied if the plaintiff claims a 15 sum greater than the jurisdictional requirement. Id. 16 However, if the plaintiff does not claim a sum greater than the jurisdiction requirement, the 17 defendant cannot meet its burden by merely alleging that the amount in controversy is met: “The 18 authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes 19 the idea that jurisdiction may be maintained by mere averment . . . .” Id. (quoting McNutt v. Gen. 20 Motors Acceptance Corp., 298 U.S. 178, 189 (1936)) (emphasis omitted). 21 In some cases, it may be “‘facially apparent’ from the complaint that the jurisdictional 22 amount is in controversy.” See Singer v. State Farm Mut. Auto. Ins., 116 F.3d 373, 377 (9th Cir. 23 1997) (delineating the “appropriate procedure for determining the amount in controversy on 24 removal” as described in Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995)). However, 25 “[w]hen the amount is not facially apparent from the complaint, the court may consider facts in the 26 2 1 removal petition and may require parties to submit summary-judgment-type evidence relevant to 2 the amount in controversy at the time of removal.” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 3 (9th Cir. 2006) (internal quotation marks omitted). Here, no copy of Plaintiff’s complaint has been 4 filed. Accordingly, jurisdiction has not been established. 5 6 7 Here, in arguing that the amount in controversy requirement has been satisfied, Defendant relies solely upon conclusion of counsel. The court will provide Defendant additional time to present “summary-judgment-type 8 evidence” showing by a preponderance of the evidence that this case meets § 1332(a)’s amount in 9 controversy requirement. 10 IT IS THEREFORE ORDERED that Defendant is granted twenty (20) days to establish the 11 minimum amount in controversy for federal jurisdiction. Plaintiff is granted ten (10) days to file an 12 opposition. No reply is required. 13 IT IS SO ORDERED. 14 DATED this 26th day of October, 2012. 15 __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 3

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