Davis v. Nationwide Affinity Insurance Company of America

Filing 17

ORDER that 8 Plaintiff's Motion to Remand to State Court is DENIED. Signed by Judge James C. Mahan on 8/15/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JEREMIAH DAVIS,

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Plaintiff(s),

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Case No. 2:17-CV-1161 JCM (VCF)
ORDER

v.
NATIONWIDE AFFINITY INSURANCE
COMPANY OF AMERICA,
Defendant(s).

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Presently before the court is plaintiff Jeremiah Davis’s motion to remand to state court.

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(ECF No. 8). Defendant Nationwide Affinity Insurance Company of America filed a statement

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regarding removal. (ECF No. 9). Defendant also filed an opposition to plaintiff’s motion to

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remand (ECF No. 10), to which plaintiff replied (ECF No. 11).

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I.

Facts

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This is a breach of insurance contract action. (ECF No. 1 at 9–10). Plaintiff alleges that

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“[d]efendant was obligated to indemnify [p]laintiff for any harm caused to [p]laintiff for which

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coverage might reasonably be provided under the [p]olicy.” (Id. at 10). Plaintiff further alleges

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that defendant breached this duty when it refused to indemnify plaintiff after an uninsured motorist

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crashed into the rear of his rental car while stopped at a traffic light. (Id.).

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Plaintiff originally filed the complaint in state court on March 17, 2017. (ECF No. 1 at 9).

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The complaint alleges three causes of action: (1) breach of contract, (2) bad faith, and (3) unfair

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settlement practices. (Id. at 9–16). Plaintiff pleads actual damages—which encompass medical

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payments coverage, uninsured motorists’ coverage, and emotional distress—totaling exactly

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James C. Mahan
U.S. District Judge

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$75,000. (Id. at 16). Plaintiff also requests punitive damages and “such further relief as the court

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deems just” in its prayer for relief. (Id. at 16).
Defendant removed the action to federal court on April 26, 2017, pursuant to 28 U.S.C. §

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1332. (See id.).
In the instant motion, plaintiff moves to remand the action to state court. (ECF No. 8).

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II.

Legal Standard

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Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the

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district courts of the United States have original jurisdiction, may be removed by the defendant or

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the defendants, to the district court of the United States for the district and division embracing the

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place where such action is pending.” 28 U.S.C. § 1441(a).

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For a United States district court to have diversity jurisdiction under 28 U.S.C. § 1332, the

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parties must be completely diverse and the amount in controversy must exceed $75,000, exclusive

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of interest and costs. 28 U.S.C. § 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d

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1098 (9th Cir. 2003). A removing defendant has the burden to prove by a preponderance of the

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evidence that the jurisdictional amount is met. Sanchez v. Monumental Life Ins. Co., 102 F.3d

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398, 403–04 (9th Cir. 1996). “Where both actual and punitive damages are recoverable under a

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complaint each must be considered to the extent claimed in determining jurisdictional amount.”

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Bell v. Preferred Life Assur. Soc. of Montgomery, Ala., 320 U.S. 238, 240 (1943); see also Gibson

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v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (“It is well established that punitive damages

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are part of the amount in controversy in a civil action”).

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Procedurally, a defendant has thirty (30) days upon notice of removability to remove a case

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to federal court. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing

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28 U.S.C. § 1446(b)(2)). Defendants are not charged with notice of removability “until they’ve

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received a paper that gives them enough information to remove.” Id. at 1251.

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A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. §

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1447(c). Remand to state court is proper if the district court lacks jurisdiction. Id. On a motion

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to remand, the removing defendant faces a strong presumption against removal, and bears the

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James C. Mahan
U.S. District Judge

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burden of establishing that removal is proper. Sanchez 102 F.3d at 403–04; Gaus v. Miles, Inc.,

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980 F.2d 564, 566–67 (9th Cir. 1992).

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III.

Discussion

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In its statement of removal, defendant argues that it has properly removed the case to

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federal court, that complete diversity exists between the parties, and that the amount-in-

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controversy exceeds $75,000, exclusive of interest and costs. (ECF No. 1).

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Plaintiff does not dispute that, procedurally, the case has been properly removed. (See ECF

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Nos. 8, 11). Further, neither party argues that complete diversity is not met. (See ECF Nos. 8, 9,

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10, 11). Instead, plaintiff’s argument is that the amount-in-controversy is exactly $75,000 and, as

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a result, the case must be remanded to state court. (ECF No. 8). The court disagrees.

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Here, the complaint “filed in state court alleges on its face an amount in controversy

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sufficient to meet the federal jurisdictional threshold.” Guglielmino v. McKee Foods Corp., 506

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F.3d 696, 699 (9th Cir. 2007). The court finds that the instant action, which concerns defendant’s

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alleged breach of insurance contract and bad faith, falls squarely within the purview of the Nevada

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Revised Statute authorizing punitive damages. Nev. Rev. Stat. § 42.005(2)(b). Moreover,

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plaintiff’s complaint specifically requests punitive damage be imposed. (ECF No. 1 at 16).

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Consequently, punitive damages must be included in the total amount-in-controversy. Bell, 320

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U.S. at 240.

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The allegation of actual damages in the amount of $75,000 on the face of the complaint

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coupled with the request for punitive damages presumptively satisfies the amount-in-controversy

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requirement of 28 U.S.C. § 1332. See id. Having pleaded exactly $75,000 in actual damages, the

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amount-in-controversy requirement is satisfied because plaintiff has pleaded punitive damages in

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some amount. Further, it does not appear “to a ‘legal certainty’ that the plaintiff cannot actually

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recover that amount.” Id. Defendant has met its burden of showing, by a preponderance of the

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evidence, that removal is proper. See Sanchez, 102 F.3d at 403–04. As a result, plaintiff’s motion

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to remand is denied.

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...

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...

James C. Mahan
U.S. District Judge

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IV.

Conclusion

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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 to state court (ECF No. 8) be, and the same hereby is, DENIED.
DATED August 15, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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