Le v. Geico Casualty Company

Filing 17

ORDER - Plaintiff's Motion to Remand (ECF No. 7 ) is granted. The Clerk is instructed to close this case. Signed by Judge Miranda M. Du on 8/7/2017. (Certified copies of instant Order, and PACER docket sheet mailed to 8th Judicial Clerk on 8/7/2017.) (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

9 MY-LINH LE, an individual,
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Case No. 2:17-cv-01819-MMD-NJK
Plaintiff,

ORDER

v.
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GEICO CASUALTY COMPANY, DOES 1
12 through 100, and ROE CORPORATIONS
101 through 200, inclusive,
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Defendants.
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I.

SUMMARY

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This case comes before the Court through Defendant Geico Insurance Company’s

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notice of removal. (ECF No. 1.) Plaintiff My-Linh Le filed this action on March 29, 2017,

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in the Eighth Judicial District Court in Clark County, Nevada, alleging claims against

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Defendants as Plaintiff’s auto insurer.1 Before the Court is Plaintiff’s Motion to Remand

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(ECF No. 7), which Defendant opposes (ECF No. 11). For the reasons discussed herein,

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the Court grants Plaintiff’s Motion.

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II.

RELEVANT BACKGROUND

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The following facts are taken from the Complaint (ECF No. 1-1). Plaintiff alleges

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that on March 2, 2016, he was involved in an automobile accident where the other driver

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(“Driver”), who was under insured, failed to follow Nevada’s traffic laws. Plaintiff sustained

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injuries in excess of the Driver’s under insured motorist insurance policy

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Complaint references Progressive. (ECF No. 1-1 at 4.) Defendant asserts
that it is erroneously named as Geico Casualty Company. (ECF No. 11 at 1.)

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limits. Plaintiff received a tender up to that policy limit. Plaintiff has made demands for

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benefits under his under insured motor portions of his policy with Defendant, who failed

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to provide sufficient compensation.

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Plaintiff alleges three claims for breach of contract, breach of the implied covenant

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of good faith and fair dealing and unfair claims practice in violation of NRS § 686A.310.

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Plaintiff seeks general and special damages in excess of $10,000.00, as well as punitive

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damages and attorney’s fees and costs.

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III.

DISCUSSION

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Federal courts are courts of limited jurisdiction, having subject matter jurisdiction

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only over matters authorized by the Constitution and Congress. U.S. Const. art. III, § 2,

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cl. 1; e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit

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

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original jurisdiction over the suit. 28 U.S.C. § 1441(a). However, courts strictly construe

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the removal statute against removal jurisdiction, and “[f]ederal jurisdiction must be

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rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles,

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Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). The party seeking removal

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bears the burden of establishing federal jurisdiction. Durham v. Lockheed Martin Corp.,

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445 F.3d 1247, 1252 (9th Cir. 2006).

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To establish subject matter jurisdiction pursuant to diversity of citizenship, the party

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asserting jurisdiction must show: (1) complete diversity of citizenship among opposing

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parties and (2) an amount in controversy exceeding $75,000.00. 28 U.S.C. § 1332(a).

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Where a defendant removes a plaintiff’s state action on the basis of diversity jurisdiction,

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the defendant must either: (1) demonstrate that it is facially evident from the plaintiff’s

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complaint that the plaintiff seeks in excess of $75,000.00, or (2) prove, by a

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preponderance of the evidence, that the amount in controversy meets the jurisdictional

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limit. Valdez v. Allstate Ins. Co., 372 F.3d 1115 (9th Cir. 2004). In considering what

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evidence may be considered under (2) above, the Ninth Circuit has adopted the “practice

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of considering facts presented in the removal petition as well as any ‘summary2

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judgement-type evidence relevant to the amount in controversy at the time of removal.’”

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Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting

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Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)).

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For jurisdictional purposes, the amount in controversy is determined by the amount

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at stake in the underlying litigation. Theis Research, Inc. v. Brown & Bain, 400 F.3d 659,

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662 (9th Cir. 2005). In determining the amount in controversy, a district court may

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consider the amount of compensatory and punitive damages recoverable based on

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plaintiff’s complaint as well as attorney fees, but may not consider interest and cost of

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suit. Meisel v. Allstate Indem. Co., 357 F.Supp.2d 1222, 1225 (citing Hunt v. Wash. State

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Apple. Adver. Comm’n, 432 U.S. 333, 347-48 (1977)).

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Plaintiff states that “Plaintiff has never expressly asserted that the value of her

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claim exceeds $75,000.00 as required by 28 U.S.C. § 1332.” (ECF No. 7 at 2.) According

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to Plaintiff, he incurred about $30,877 in medical expenses, the Driver’s auto insurance

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policy tendered the under insured policy limit of $15,000.00, and Plaintiff’s under insured

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motorist coverage with Defendant carries a limit of $50,000.00. (Id. at 2.) Defendant

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counters that the allegations in the Complaint demonstrate that Plaintiff seeks damages

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in excess of $75,000.00. Defendant argues that the jurisdictional limit is reached by

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adding up the total for the three claims: $50,000.00 for the breach of contract claim; and

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a total of $30,000.00 (based upon the state district court’s jurisdictional limit now

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exceeding $15,000.00) for the remaining two claims.

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Defendant’s arguments are premised more on speculation than on a specific

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showing of a disputed amount over $75,000.00. The allegations in the Complaint do not

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support Defendant’s arguments. Plaintiff does not seek $50,000.00 in damages for the

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breach of contract claim. The only amount indicated in the Complaint is an amount in

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excess of $10,000.00. Against this backdrop, the Court is mindful that it “cannot base [its]

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jurisdiction on defendant’s speculation and conjecture.” Lowderkmilk v. U.S. Bank Nat’l

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Ass’n, 479 F.3d 994, 1002 (9th Cir. 2007).

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Defendant must overcome a “strong presumption” against removal jurisdiction.

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See Gaus, 980 F.2d at 567. The Court must be provided with the tools necessary to

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evaluate whether Defendant has met its burden, and must do so as part of its continual

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duty to establish its own jurisdiction. See United Investors Life Ins. Co. v. Waddell & Reed

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Inc., 360 F.3d 960, 967 (9th Cir. 2004). Based on the record before it, the Court holds

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that it does not have jurisdiction to hear this claim.

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IV.

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CONCLUSION
It is therefore ordered that Plaintiff’s Motion to Remand (ECF No. 7) is granted.

The Clerk is instructed to close this case.
DATED THIS 7th day of August 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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