Cousert v. Geico General Insurance Company

Filing 14

ORDER Granting 13 Motion to Remand to State Court. Signed by Judge Jennifer A. Dorsey on 7/31/2014. (Copies have been distributed pursuant to the NEF - cc: 8th Judicial District Court - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Glen Cousert

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Case No. 2:14-cv-00915-JAD-VCF
Plaintiff,

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v.

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REMAND ORDER

Geico General Insurance Company, et al.,

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Defendants.

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Defendant Geico General Insurance Company removed this underinsured/uninsured

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motorist coverage action to federal court on June 11, 2014. Doc. 1. The removing party has the

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burden of proving that removal is proper and that this court may properly assert jurisdiction over

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the parties and the dispute. Because Geico’s petition for removal did not provide sufficient facts

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to justify jurisdiction, I ordered Geico to show cause why this action should not be remanded to

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the state court. Doc. 11. Geico responded to the show-cause order on July 7, 2014, Doc. 12, and

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two days later, plaintiff Glen Cousert timely moved to remand this case back to state court. Doc.

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13. Geico has filed no opposition to the motion to remand,1 and its response to the OSC failed to

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demonstrate that jurisdiction rests in this court. I grant the unopposed motion to remand.

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Discussion

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Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger,

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437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case

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unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville

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Res., 873 F.2d 1221, 1225 (9th Cir. 1989). “Federal jurisdiction must be rejected if there is any

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doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

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Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

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Courts “strictly construe the removal statute against removal jurisdiction.” Id. “The ‘strong

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The deadline for Geico’s opposition was July 26, 2014. Geico filed no response whatsoever and
has not sought to extend its time for response.

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presumption’ against removal jurisdiction means that the defendant always has the burden of

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establishing that removal is proper.” Id. Remand is proper if the court lacks subject matter

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jurisdiction. 28 U.S.C. § 1447(c); see also Aguon-Schulte v. Guam Election Comm’n, 469 F.3d

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1236, 1240 (9th Cir. 2006) (“remand may be ordered either for lack of subject matter jurisdiction

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or for ‘any defect’ in the removal procedure”).

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When “a plaintiff’s state court complaint does not specify a particular amount of damages,

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the removing defendant bears the burden of establishing, by a preponderance of the evidence, that

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the amount in controversy exceeds [$75,000]. Under this burden, the defendant must provide

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evidence establishing that it is ‘more likely than not’ that the amount in controversy exceeds that

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amount.” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). See also

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Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 689 (9th Cir. 2006) (the removing party bears

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the burden of establishing that the jurisdictional amount is satisfied at the time of removal based

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on competent facts outside the face of the pleadings). Broad allegations that the jurisdictional

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amount is met, “‘although attempting to recite some ‘magical incantation,’ neither overcome[ ]

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the ‘strong presumption’ against removal jurisdiction, nor satisf[y the defendant]’s burden of

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setting forth, in the removal petition itself, the underlying facts supporting its assertion that the

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amount in controversy exceeds” $75,000. 443 F.3d at 689 (quoting Gaus, 980 F.2d at 567); see

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also Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (“[R]emoval

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cannot be based simply upon conclusory allegations where the ad damnum is silent.”) (internal

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quotations and citation omitted). Conclusory allegations do not overcome the presumption

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against removal jurisdiction or satisfy the defendant’s burden of proving the case. Valdez v.

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Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (citations omitted).

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“Where a complaint is unclear as to the total amount of damages sought, but alleges only

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upper or lower limits or types of damages, a district court is free in its preponderance-of-the-

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evidence analysis to make estimations of the amount of damages that could be obtained consistent

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with the vague wording of the complaint.” Elliker v. Contractors Bonding & Ins. Co., 3:12-CV-

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00438-RCJ, 2013 WL 757621 (D. Nev. Feb. 27, 2013) (citing Guglielmino v. McKee Foods

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Corp., 506 F.3d 696, 700–01 (9th Cir. 2007)). The Eleventh Circuit Court of Appeals has held
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that in conducting such analyses, district courts can make “reasonable deductions, reasonable

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inferences, or other reasonable extrapolations from the pleadings to determine whether it is

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facially apparent that a case is removable,” and “may use their judicial experience and common

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sense in determining whether the case stated in a complaint meets federal jurisdictional

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requirements.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061-1062 (11th Cir. 2010). This

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approach is consistent with the holding in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), in which

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the High Court recognized that “[d]etermining whether a complaint states a plausible claim for

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relief . . . requires the reviewing court to draw on its judicial experience and common sense.” Id.

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at n. 5.

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There is considerable doubt as to Geico’s right to remove this case because it appears

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highly unlikely that Plaintiff can satisfy this court’s jurisdictional threshold. Geico has filed no

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opposition to the motion to remand, and the rules of this court permit me to presume now that

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Geico consents to remand.2 But even if I consider Geico’s position in its response to the order to

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show cause, Doc. 12, Geico has not established jurisdiction. Plaintiff asserts that medical

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damages in this case are just over $10,000 and “even quadrupuling those damages as a punitive

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measure would still fail to exceed the $75,000 threshold required for removal to Federal Court.”

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Doc. 13 at 4. Plaintiff also notes that he attempted to reach a $25,000 settlement with Geico,

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which Geico rejected. Id. at 2; see also Cohn v. Petsmart, 281 F.3d 837, 840 (9th Cir. 2002)

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(collecting cases in which courts have recognized that settlement offers are properly consulted to

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determine a plaintiff’s assessment of the value of his case). Thus, it clearly appears that plaintiff

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values his case far below the federal jurisdictional threshold. In its response to the order to show

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cause, Geico acknowledges this offer and provides a copy of an earlier letter demand for $27,000,

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but then simply muses that plaintiff “is free and likely to seek damages well above that amount at

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trial.” Doc. 12 at 4. Geico also suggests that the punitive damages prayer will push this case over

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the $75,000 threshold, but I agree with Plaintiff’s assessment that punitive damages will push this

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$10,000 case into the $75,000+ range. Based on my judicial, legal and practical experience, and

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Rule 7-2(d) (“. . . The failure of an opposing party to file points and authorities in response to
any motion shall constitute a consent to the granting of the motion.”).
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common sense, I find that federal jurisdictional requirements have not been demonstrated in this

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case. Roe, 613 F.3d at 1061-1062; Iqbal, 556 U.S. at 679.

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Order
IT IS THEREFORE ORDERED that this case is remanded back to the Eighth Judicial

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District Court, Clark County, Nevada, for all further proceedings. The Clerk of the Court is

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instructed to close this case.

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Dated: July 31, 2014.

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JENNIFER DORSEY
ENNIFER DORSEY
N
R
UNITED STATES DISTRICT JUDGE
NITED STATES DISTRICT J
ED
ED T
ISTRI

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