Swartz et al v. USAA Casualty Insurance Company

Filing 15

ORDER denying 12 Motion to Dismiss and for Remand, as more fully set out. Signed by Honorable David L. Russell on 1/14/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID SWARTZ and
LINDSEY SWARTZ,
Plaintiffs,
v.
USAA CASUALTY INSURANCE
COMPANY, a/k/a UNITED
STATES AUTOMOBILE
ASSOCIATION (USAA),
Defendants.

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Case No. CIV-15-905-R

ORDER
Plaintiffs have filed a “Motion to Dismiss and for Order of Remand,” Doc. No. 12,
in which they assert that the amount in controversy does not exceed $75,000, exclusive of
interest and costs, based on either a hypothetical estimate of their damages or Defendant’s
CIC estimate of the value of the total loss of Plaintiff’s vehicle. However, in Defendant’s
Amended Notice of Removal, Defendant states that Plaintiffs’ settlement demand was
$162,0001 and have submitted evidence thereof. Furthermore, in this bad faith action,
Plaintiffs seek punitive damages and attorney’s fees. Finally, Plaintiffs did not comply with
the Oklahoma State, Okla. Stat. tit. 12, § 2008(A)(2), requiring them to either 1) plead an
amount in controversy required for diversity jurisdiction or 2) plead a specific amount below
the threshold. The Court finds that Defendant has proved by a preponderance of the evidence
that the amount in controversy exceeds $75,000, exclusive of interest and costs, and that

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It is irrelevant that the settlement demand has now been withdrawn.

Plaintiffs have failed to prove to a legal certainty that the amount in controversy at the time
of removal did not exceed the jurisdictional amount. Compare with McPhail v. Deere & Co.,
529 F.3d 947, 952-57 (10th Cir. 2008). Accordingly, Plaintiffs’ motion to dismiss and for
remand must be and is DENIED.
IT IS SO ORDERED this 14th day of January, 2016.

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