Kunkel v. CUNA Mutual Insurance Society

Filing 21

ORDER, REPORT AND RECOMMENDATION : Denying re 14 Joint MOTION to Strike it is recommended that 9 MOTION to Remand to State Court be DENIED. Objections to R&R due by 11/21/2011. Signed by Magistrate Judge Norah McCann King on 11/02/11. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PATRICIA A. KUNKEL, individually,
and as Executor of The Estate of
Frederick L. Kunkel a/ka Fred Kunkel,
Plaintiff,
vs.

Civil Action 2:11-CV-492
Judge Graham
Magistrate Judge King

CUNA MUTUAL INSURANCE
SOCIETY,
Defendant.
ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court on plaintiff’s motion to remand
premised on lack of subject matter jurisdiction, Motion to Remand Due to
Lack of Subject Matter Jurisdiction, Doc. No. 9 (“Motion to Remand”), and
defendant’s motion to strike an affidavit filed in support of the Motion
to Remand, Defendant’s Motion to Strike Plaintiff’s Counsel[‘s] Improper
Affidavit (“Motion to Strike”), Doc. No. 14.

The Motion to Remand was

referred to the undersigned for report and recommendation.
No. 15.

For the reasons that follow, it is RECOMMENDED that the Motion

to Remand be denied.
I.

Order, Doc.

The Motion to Strike is DENIED.

BACKGROUND
Plaintiff filed the original Complaint in the Court of Common Pleas

for Licking County, Ohio. Complaint for Breach of Insurance Contract and
Bad Faith, Doc. No. 3.

The Complaint, which includes claims of breach

of contract and bad faith, alleges that plaintiff and her husband owned
a life insurance policy “which promised to pay the loan debt [to a
specific credit union] in the event that either [plaintiff or her

husband] died before the loan was paid in full.”

Id. ¶ 1.

Plaintiff

alleges that, after her husband died, defendant denied her claim under
the policy.

Id. ¶ 4.

Plaintiff demands judgment “in an amount due under

the loan contract as of September 6, 2011, plus for an amount in excess
of $25,000.00 for punitive damages . . . plus attorney fees, interest and
court costs.”

Id. p.2.

The Complaint does not specify the amount due

under the loan contract on the relevant date.

Id.

On June 7, 2011, defendant filed a notice of removal premised on
diversity jurisdiction. Defendant’s Notice of Removal of Cause, Doc. No.
1.

The Court ordered the parties to file any “[m]otions or stipulations

addressing the parties or pleadings” by August 10, 2011.
Pretrial Order, Doc. No. 8.
Motion to Remand.

Preliminary

On August 10, 2011, plaintiff filed the

Plaintiff’s sole argument in the motion is that the

amount in controversy does not exceed $75,000, exclusive of interest and
costs, as required by 28 U.S.C. § 1332(a) for diversity jurisdiction.
Approximately two weeks after plaintiff filed the Motion to Remand,
plaintiff filed an affidavit in support of the Motion to Remand.
Plaintiffs’ [sic] Attorney Affidavit in Support of Motion to Remand to
State Court, Doc. No. 11 (“Affidavit”).

In that Affidavit, plaintiff’s

attorney represents, “When this case goes to trial, the Plaintiffs and
I will ask for an award of the payoff amount of the Plaintiffs’ loan on
the date of death of Frederick Kunkel and for punitive damages in no more
than an amount of $30,000.00.”
II.

DISCUSSION

A.

Id. ¶ 8.

Timeliness
As

a

preliminary

matter,

this

Court

must

argument that the Motion to Remand is untimely.

address

defendant’s

Defendant, citing 28

U.S.C. § 1447(c), argues briefly that the Motion to Remand should be

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denied on the ground that plaintiff filed it more than 30 days after
removal.

Defendant’s

Opposition

to

Plaintiff’s

Motion

to

Remand

(“Opposition to Motion to Remand”), Doc. No. 12, p.1. Although 28 U.S.C.
§1447(c) does impose a 30-day deadline on certain motions to remand, the
statute expressly excludes from this deadline motions to remand based on
a claimed lack of subject matter jurisdiction.

Id.

In fact, the statute

expressly provides that lack of subject matter jurisdiction may be raised
at any point before entry of final judgment.

Id. (“If at any time before

final judgment it appears that the district court lacks subject matter
jurisdiction,

the

case

shall

be

remanded.”)

(emphasis

added).

Defendant’s argument regarding timeliness therefore fails.
B.

Amount in Controversy and Motion to Strike
District courts may exercise jurisdiction over “all civil actions

where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of
different states.”

28 U.S.C. § 1332(a).

A party who removes a case to

federal court bears the burden of establishing “that the allegations in
the complaint . . . satisfy the amount-in-controversy requirement.”
Northup Properties, Inc. v. Chesapeake Appalachia, L.L.C., 567 F.3d 767,
769-70 (6th Cir. 2009).

Although a plaintiff is not required to

“research, state and prove the plaintiff’s claim for damages,”

Hayes v.

Equitable Energy Resources Co., 266 F.3d 560, 572 (6th Cir. 2001), where
a plaintiff “seek[s] to recover some unspecified amount that is not selfevidently

greater

or

less

than

the

federal

amount-in-controversy

requirement, the defendant satisfies its burden when it proves that the
amount in controversy more likely than not exceeds $75,000.”

Everett v.

Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2006) (internal
quotation marks omitted). A court must consider punitive damages as part

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of the amount in controversy “unless it is apparent to a legal certainty
that [punitive damages] cannot be recovered.”

Id. (internal quotation

marks omitted).
Here, the Complaint seeks several types of damages: (1) compensatory
damages “in an amount due under the loan contract as of September 6,
2011;" (2) punitive damages “in excess of $25,000.00;" and (3) “attorney
fees, interest and court costs.”

Id. The parties agree that the

requested compensatory damages claim amounts to approximately $25,000.
Opposition to Motion to Remand, p.3; Affidavit, ¶ 7.

There is no

dispute, moreover, that plaintiff’s claim of bad faith would support a
request for punitive damages.

In fact, the only issue in dispute, for

purposes of the Motion to Remand, is the amount of punitive damages that
might be recoverable.

Motion to Remand, Doc. No. 10, p.1; Response to

Defendant’s Opposition to Plaintiffs’ Motion to Remand, Doc. No. 16
(“Reply in Support of Motion to Remand”).
Ohio courts determine the reasonableness of a punitive damages
award, in part, based on the size of a compensatory damages award.
Barnes v. Univ. Hosps. of Cleveland, 893 N.E.2d 142, syllabus ¶ 2 (Ohio
2008); see also Burns v. Prudential Secs., Inc., 857 N.E.2d 621, 650
(Ohio Ct. App. 2006). Here, a punitive damages award calculated at twice
the amount of the claimed $25,000 in compensatory damages would result
in a total recovery that approximates the jurisdictional amount under 28
U.S.C. §1332.
law.

Such an amount would be a “conservative award” under Ohio

See Shaffer v. Brink’s U.S., No. 2:10-CV-331, 2010 WL 2302355, *2

(S.D. Ohio June 8, 2010); see also Gollihue v. Consolidated Rail Corp.,
697 N.E.2d 1109, 1125 (Ohio Ct. App. 1997) (holding that a punitive
damages award calculated at three times the compensatory damages award
was not inappropriate).

Under these circumstances, the Court concludes

that the jurisdictional amount has been met.
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The Affidavit submitted by plaintiff in support of her Motion to
Remand appears to reflect her attempt to cap or stipulate to an award of
compensatory
jurisdictional

and

punitive

amount.

ineffective, however.

damages

Plaintiff’s

of

less

attempt

than
in

the
this

statutory
regard

is

A court’s removal jurisdiction attaches, if at

all, at the time of removal.
303 U.S. 283, 293 (1938).

St. Paul Mercury Indem. Co. v. Red Cab Co.,
A plaintiff may not thereafter divest the

court of jurisdiction by, for example, reducing the amount sought.

Id.

(“[E]vents occurring subsequent to removal which reduce the amount
recoverable, whether beyond the plaintiff’s control or the result of his
volition, do not oust the district court’s jurisdiction once it has
attached.”).

WHEREUPON, the Motion to Strike, Doc. No. 14, is DENIED.
It is RECOMMENDED that the Motion to Remand, Doc. No. 9, be DENIED.

If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto.
636(b)(1); Fed.R.Civ.P. 72(b).

28 U.S.C. §

Response to objections must be filed

within fourteen (14) days after being served with a copy thereof.
Fed.R.Civ.P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal a decision of the
District Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); Smith v. Detroit Found. of Teachers, Local 231,
5

etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
November 2, 2011

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