Cormier v. State Farm Mutual Automobile Insurance Company

Filing 14

ORDER Granting 8 Motion to Remand to State Court. Signed by Judge James C. Mahan on 7/15/2014. (Copies have been distributed pursuant to the NEF; CC: Certified Copy of Order and Docket Sheet to State Court - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SHERRY L. CORMIER,

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2:14-CV-502 JCM (GWF)

Plaintiff(s),

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v.

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STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff Sherry Cormier’s motion to remand. (Doc. # 8).

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Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) has filed a response

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(doc. # 10), and plaintiff filed a reply. (Doc. # 13).

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I.

Background

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On November 26, 2012, an automobile operated by Rexalynn Walberg struck plaintiff’s

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vehicle from behind while plaintiff waited at a traffic signal. (Doc. # 10 at 2). From November 26,

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2012, to August 1, 2013, plaintiff visited Sunrise Hospital Medical Center, Akers Chiropractic,

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Nevada Comprehensive Pain Center, Las Vegas Radiology, Desert Radiology, and Desert

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Orthopedic Center for medical care. (Doc. # 10-1 at 3-6). Though varying diagnoses were made

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during the course of her treatment, plaintiff’s medical issues primarily involve damage to the spine

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and both knees. Id. at 3-6.

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James C. Mahan
U.S. District Judge

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On October 29, 2013, plaintiff’s counsel sent correspondence to plaintiff’s insurer, State

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Farm, requesting a policy settlement of $50,000. Id. at 7. Plaintiff’s complaint indicates State Farm

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has not accepted this request. (Doc. 1-1 at 4). Plaintiff alleges breach of contract, violations of

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N.R.S. 686A.310, and breach of the covenant of good faith and fair dealing. (Doc. # 1-1 at 4-6).

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Defendant filed for removal (doc. # 1), and plaintiff moved to remand. (Doc. # 8).

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II.

Legal Standard

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An action filed in state court may be removed to federal court if the federal court would have

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had original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). Subject matter

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jurisdiction exists over suits between citizens of different states where the amount in controversy

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exceeds the sum or value of $75,000. 28 U.S.C. § 1332(a). The removal statutes are construed

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restrictively, and doubts regarding the viability of removal are resolved in favor of remanding the

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case to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also

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Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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Where the complaint does not establish the amount in controversy, “the removing defendant

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bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy

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exceeds [$75,000].” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996);

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Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007).

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III.

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Discussion
The only question in the present motion is whether the amount in controversy exceeds the

$75,000 threshold established in 28 U.S.C. § 1332. (Doc. # 8 at 4).

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On its face, the complaint does not establish the amount in controversy to be greater than

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$75,000 because plaintiff asks for a judgment of “[g]eneral damages in excess of ten thousand

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dollars” in addition to unquantified special and punitive damages, prejudgment interest, attorney’s

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fees, and other relief. (Doc. # 1-1 at 7-8).

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Therefore, defendant must satisfy the amount-in-controversy requirement by a preponderance

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of the evidence. Sanchez, 102 F.3d at 404. Significantly in the present case, “[c]onclusory

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allegations as to the amount in controversy are insufficient.” Matheson v. Progressive Specialty Ins.

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James C. Mahan
U.S. District Judge

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Co. 319 F.3d 1089, 1090-91 (9th Cir. 2003).

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A. Lost Wages, General Damages, and Attorney Fees

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Defendant lacks evidence supporting its estimations of potential damages for lost wages,

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general damages, and attorney fees. (Doc. # 10 at 6-9). Thus, defendant’s proffered estimations are

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conclusory and cannot be considered for the amount-in-controversy calculation. See Matheson, 319

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F.3d at 1090-91.

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B. Punitive Damages

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Defendant seeks a “home run” resolution to the amount-in-controversy question by

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analogizing possible punitive damages from the present controversy to cases with materially different

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facts.

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Defendant’s reference to Robinson v. State Farm Mut. Auto. Ins. Co. is unpersuasive. (Doc.

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# 10 at 8). First, defendant does not explain if or how Idaho law relevant in that case mirrors Nevada

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law. See Robinson v. State Farm Mut. Auto. Ins. Co., 45 P.3d 829, 832-33 (Idaho 2002). Next,

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defendant does not mention the relevance of the evidence in Robinson that the insurer there referred

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claims to review companies it knew would find favorably for the insurer. See id. at 831-32.

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Next, defendant describes possible punitive-damage-to-benefits ratios resulting from cases.

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See Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1012 (9th Cir. 2007) (“awarding [plaintiff]

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$1,147,355 in unpaid benefits . . .” and $10,000,000 in punitive damages); (Doc. # 10 at 8). As in

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Robinson, the plaintiff in Merrick alleged particularly dishonest dealings distinct from those alleged

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in the present case. See Merrick, 500 F.3d at 1012 (“[A witness] testified that the company’s

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handling of Merrick’s claim was consistent with many of Unum Provident’s improper practices . .

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. .”). Analogous allegations are not present here.

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Additionally, defendant cites Athey v. Farmers Ins. Exch.; however, South Dakota law

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governed that case. See Athey v. Farmers Ins. Exch., 234 F.3d 357, 362-63 (8th Cir. 2000).

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Therefore, Athey is not persuasive here.

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Finally, defendant’s invocation of Ainsworth v. Combined Ins. Co. of Am. fails to aid

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defendant’s argument. (Doc. # 10 at 8). Defendant does not describe or apply the factors influencing

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James C. Mahan
U.S. District Judge

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the level of punitive damages in Ainsworth to the current case. See Ainsworth v. Combined Ins. Co.

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of Am., 763 P.2d 673, 677. For the foregoing reasons, the case law argued by defendant is

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unpersuasive. Accordingly, defendant does not meet its evidentiary burden to add punitive damages

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to the amount-in-controversy calculation.

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C. Medical Expenses

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First, defendant refers to plaintiff’s potential pursuit of additional medical treatment,

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contending that this care “will probably be billed at tens of thousands of dollars.” (Doc. # 10 at 6).

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Defendant does not indicate the factual basis of this conclusion. Consequently, this speculation is

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to be ignored when aggregating the amount in controversy. See Sanchez, 102 F.3d at 404.

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Next, defendant refers to plaintiff’s assertions that past medical expenses amounting

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$19,260.76 resulted from the automobile accident. (Docs. # 10 at 6, 10-1 at 6). However, at the

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current stage of litigation, this is only supported by plaintiff’s assertion in a letter demanding

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settlement from defendant. (Doc. # 10-1 at 6). This communication is neither a sworn statement,

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nor clear evidence of plaintiff’s exact medical expenses.

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Even if this form of evidence is sufficient to establish that figure, the monetary sum involved

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in the current controversy, in context of the foregoing determinations, does not approach the amount-

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in-controversy requirement.

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D. Jurisdictional Discovery

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In its response, defendant states “[i]f the [c]ourt determines the facts in evidence are

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insufficient to establish that the amount in controversy exceeds the jurisdictionally required amount,

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the [c]ourt should permit the parties to conduct discovery regarding subject matter jurisdiction.”

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(Doc. # 10 at 9).

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However, Special Order No. 109(III)(F)(4) states, “[a] separate document must be filed for

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each type of document or purpose.” Consequently, a separate motion for jurisdictional discovery

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is the proper method of requesting leave to seek additional evidence for defendant’s amount-in-

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controversy argument. As defendant requests this permission within its response to plaintiff’s

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motion to remand, the court will not consider this request. (Doc. # 10 at 9-10).

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James C. Mahan
U.S. District Judge

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IV.

Conclusion

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In summary, defendant fails to show by a preponderance of the evidence that the amount in

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controversy of the present case exceeds $75,000. See Sanchez, 102 F.3d at 404. In addition,

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defendant’s request to conduct jurisdictional discovery is not considered because the manner of the

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request’s introduction violated Special Order No. 109.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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remand (doc. # 8) be, and the same hereby is, GRANTED. The clerk will enter judgment

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accordingly and close the case.

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DATED July 15, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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