Bartl vs Safeco Insurance Company Of America

Filing 23

ORDER granting 10 Motion to Remand to State Court. The clerk shall REMAND this action, 3:13-cv-0380-LRH-WGC, to the Second Judicial District Court for the State of Nevada. Signed by Judge Larry R. Hicks on 09/27/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Before the court is plaintiff Cameron Bartl’s (“Bartl”) motion to remand. Doc. #10.1

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CAMERON BARTL,

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Plaintiff,

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v.

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SAFECO INSURANCE COMPANY OF
AMERICA; et al.,

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Defendants.

3:13-cv-0380-LRH-WCG
ORDER

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Defendant SafeCo Insurance Company of America (“SafeCo”) filed an opposition (Doc. #16) to

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which Bartl replied (Doc. #18).

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I.

Facts and Procedural History

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On June 14, 2013, Bartl filed a complaint in state court against defendants for breach of his

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homeowner’s insurance policy arising from an incident in which a car crashed into his home. Doc.

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#1, Exhibit A. Defendant SafeCo removed the action to federal court based upon diversity

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jurisdiction. Doc. #1. Thereafter, Bartl filed the present motion to remand contending that (1)

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SafeCo did not timely file its petition for removal and (2) that the $75,000 amount in controversy

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has not been met. Doc. #10.

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Refers to the court’s docket entry number.

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II.

Legal Standard

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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

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

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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). A district court has original jurisdiction

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over civil actions where the suit is between citizens of different states and the amount in

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controversy, exclusive of interest and costs, exceeds $75,000.00. 28 U.S.C. § 1332(a). In a diversity

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case, if a complaint does not specify the amount of damages, “the removing defendant bears the

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

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$[75],000.00.” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).

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Removal of a case to a district court may be challenged by motion. 28 U.S.C. § 1441(c). A

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federal court must remand a matter if there is a lack of jurisdiction. Id. Removal statutes are

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construed restrictively and in favor of remanding a case to state court. See Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992).

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III.

Discussion

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A. Timeliness

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A petitioning defendant must file a removal petition within thirty days after being served

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with a complaint. 28 U.S.C. § 1446(b). The time for each defendant begins to run when they are

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personally served with the complaint. See Coleman v. Assurant, Inc., 463 F.Supp.2d 1164, 1166 (D.

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Nev. 2006). Here, SafeCo received notice of the complaint on June 17, 2013, and filed its notice of

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removal on July 16, 2013, within the thirty day time limit.

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Bartl argues that the time for removal began to run when defendant Nationstar Mortgage

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(“Nationstar) was served on June 14, 2013, thereby making SafeCo’s subsequent removal untimely.

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See Doc. #10. However, the Ninth Circuit does not follow the “first-served” rule advocated by Bartl

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which requires removal to occur within thirty days after the first defendant has been served. See

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United Steel v. Shell Oil Co., 549 F.3d 1204, 1208 (9th Cir. 2008); see also, Coleman, 463

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F.Supp.2d at 1166 (“More recently, circuit and district courts have begun to favor the later-served

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defendant rule which allows a later served defendant [to have] 30 days from the date of service to

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remove a case to federal district court.”). Accordingly, the court finds that SafeCo’s removal was

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timely.

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B. Amount in Controversy

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In his motion, Bartl concedes that the parties are diverse for diversity jurisdiction purposes,

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but argues that SafeCo’s notice of removal is insufficient to prove, by a preponderance of the

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evidence, that the amount in controversy exceeds $75,000.00. See Doc. #10. Bartl’s complaint only

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requests damages in excess of $10,000.00 as required under the Nevada Rules of Civil Procedure.

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Further, his actual damages are relatively unknown because he has already received roughly

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$100,000.00 in compensation from his insurance policy which has a maximum limit of $149,000.

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This leaves only roughly $49,000 of the remaining insurance policy proceeds in question, well

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below the jurisdictional threshold.

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SafeCo argues that Bartl’s initial settlement offer of $230,000, and his subsequent claim for

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punitive damages, is sufficient to establish the amount in controversy and thereby diversity

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jurisdiction. However, Bartl’s pre-suit settlement request does not establish the actual amount in

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controversy once the suit is filed. Additionally, the mere possibility of a punitive damages award is

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not sufficient to prove that the amount in controversy has been met. Rather, SafeCo must present

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evidence that an award of punitive damages is a supportable claim in this action and that it is likely

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that the amount of punitive damages, more likely than not, exceeds the amount needed to increase

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the amount in controversy to $75,000. See McCaa v. Massachusetts Mutual Life Insurance

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Company, 330 F. Supp. 2d 1143, 1149 (D. Nev. 2004); see also, Gaus v. Miles, Inc., 980 F.2d 564,

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567 (9th Cir. 1992).

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Here, SafeCo has failed to provide the court with sufficient evidence to establish that the

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amount in controversy will be exceeded by Bartl’s punitive damages claim. Therefore, the court

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finds that SafeCo has failed to meet its burden to prove that the amount in controversy has been

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met. Accordingly, this action shall be remanded for lack of jurisdiction.

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IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Doc. #10) is

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GRANTED. The clerk of court shall REMAND this action, 3:13-cv-0380-LRH-WGC, to the

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Second Judicial District Court for the State of Nevada.

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IT IS SO ORDERED.
DATED this 27th day of September, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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