Shown v. Lincoln Heritage Life Insurance Company

Filing 9

ORDER by Judge Ronald A. White remanding case to the District Court in and for Pittsburg County, State of Oklahoma (terminates case) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
Neal Todd Shown,
Plaintiff,
v.

Case No. 13-CIV-323-RAW

Lincoln Heritage Life Insurance Company,
Defendant.
ORDER
Before the court is the Notice of Removal filed on July 19, 2013 [Docket No. 3].
This case was originally filed in the District Court in and for Pittsburg County, State of
Oklahoma on June 17, 2013. On July 22, 2013, the court directed the parties to show
cause as to why the case should not be remanded to the state district court for lack of
jurisdiction [Docket No. 6]. The parties have responded [Docket Nos. 7 and 8].
The Petition states that Plaintiff demands judgment against Defendant Afor a sum in
excess of $10,000...@

The Notice of Removal indicates the parties have diverse

citizenship, but is completely silent as to the amount in controversy. In its response to the
order to show cause, Defendant states:
AAdmittedly, it is hard to discern from the Plaintiff=s Petition
whether he is claiming damages in excess of the amount
required for diversity jurisdiction pursuant to Section 1332 or
if he is claiming damages less than that amount. The Petition
does not specify the amount of damages to be recovered nor
does it reference the jurisdictional limit outlined in Section
1332.@
[Docket No. 7, page 2.] Further, in its response to the order to show cause, Defendant

provides a copy of a letter dated June 15, 2011 from Plaintiff=s counsel to Defendant
demanding the sum of $200,000. [Docket No. 7, Exhibit B, page 2].
It is well-established that Athere is a presumption against removal jurisdiction.@
Laughlin v. Kmart Corporation, 50 F.3d 871, 873 (10th Cir. 1995).
minimum for diversity jurisdiction is $75,000.00. 28 U.S.C. ' 1332(a).

The statutory
Further, subject

matter jurisdiction cannot be conferred or waived:
The general rule is that the parties cannot confer on a federal
court jurisdiction that has not been vested in that court by the
Constitution and Congress. This means that the parties cannot
waive lack of jurisdiction by express consent, or by conduct, or
even by estoppel; the subject matter jurisdiction of the federal
court is too basic a concern to the judicial system to be left to
the whims and tactical concerns of the litigants.
Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 -372 (C.A.7 (Ill.),1993).
A defendant must allege facts in its removal notice and conclusory statements are
not sufficient to establish jurisdiction. In Maxon v. Texaco Ref. and Mktg., Inc., 905
F.Supp. 976, 978 (N.D. Okla. 1995), the court stated: ATexaco offers only a conclusory
statement of Plaintiff=s damages allegations and does not allege any underlying facts with
respect to Plaintiff=s claims for damages.@Additionally, the burden Ais on the party
requesting removal to set forth, in the notice of removal itself, the underlying facts
supporting the assertion that the amount in controversy exceeds@ the statutory requirement.
See Laughlin, at 873. Similar to this case, the defendant in Laughlin submitted facts after
the filing of the notice of removal to establish the amount in controversy. Those facts
were not submitted to the Laughlin court at the time of the notice of removal. See
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Laughlin, at 873.
In the instant case, neither the petition nor the notice of removal allege sufficient
facts to establish any amount in controversy. The notice of removal also fails to provide
any underlying facts supporting the assertion that the amount in controversy is met.
Defendant=s Notice of Removal does not include facts sufficient to establish the
requisite amount in controversy by a preponderance of the evidence. Subject matter
jurisdiction Ais not a matter of equity or of conscience or of efficiency, but is a matter of the
lack of judicial power to decide a controversy.@ Laughlin, at 874, quoting Shaw v. Dow
Brands, Inc., 994 F.2d 364, 371 (7th Cir. 1993) (Shadur, J., dissenting).
Pursuant to 28 U.S.C. '1446(c)(4) and 28 U.S.C. ' 1447(c), this action is summarily
remanded to the District Court in and for Pittsburg County, State of Oklahoma.
Dated this 12th day of August, 2013.

______________________________________
HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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