Bivens v. Allstate Fire and Casualty Insurance Company

Filing 16

ORDER granting 10 plaintiff's Motion to Remand and remanding this case to the District Court of Oklahoma County, State of Oklahoma (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 4/11/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LAURA BIVENS,
Plaintiff,
vs.
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.

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Case No. CIV-17-1181-M

ORDER
Before the Court is plaintiff’s Motion to Remand, filed November 14, 2017. On December
5, 2017, defendant filed its response, and on December 15, 2017, plaintiff filed her reply. Based
upon the parties’ submissions, the Court makes its determination.
On or about July 19, 2016, plaintiff was involved in an accident while occupying a vehicle
owned by defendant’s insured, Humberto Martinez. Plaintiff alleges that she was eligible for med
pay benefits under the insurance policy issued to Mr. Martinez. Plaintiff further alleges that her
medical bills have not been paid in full by defendant under the medical payments coverage of the
insurance policy.
On August 21, 2017, plaintiff filed this action in the District Court of Oklahoma County,
State of Oklahoma, asserting both a breach of contract claim and a breach of the duty of good faith
and fair dealing claim against defendant. On November 1, 2017, defendant removed this action to
this Court on the basis of diversity jurisdiction. Plaintiff now moves this Court to remand this
action to state court. Specifically, plaintiff asserts that the amount in controversy requirement is
not satisfied. 1

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The parties do not dispute that they are of diverse citizenship.

28 U.S.C. § 1332(a) provides, in pertinent part: “The district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between – (1) citizens of different States; . . . .”
“Ordinarily, the amount in controversy is to be determined by the allegations of the complaint, or,
where they are not dispositive, the allegations in the petition for removal.” Lonnquist v. J.C.
Penney Co., 421 F.2d 597, 599 (10th Cir. 1970) (internal citations omitted). Further, if a plaintiff
“does not desire to try his case in the federal court he may resort to the expedient of suing for less
than the jurisdictional amount, and though he would be justly entitled to more, the defendant
cannot remove.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938).
In her Petition, plaintiff “prays for judgment against Defendant, Allstate, in an amount less
than $75,000.” Petition [docket no. 1-1] at 3. Plaintiff uses the term “judgment,” which would
encompass all damages, attorney’s fees, costs, interest, etc. that plaintiff is seeking in this case.
Thus, based upon the language in plaintiff’s prayer, the Court finds that the amount in controversy
in this case is clearly less than $75,000. The Court, therefore, finds that it does not have subject
matter jurisdiction in this case and that this case should be remanded to state court.
In her motion, plaintiff also moves, pursuant to 28 U.S.C. § 1447(c), for an award of her
costs and expenses, including attorney’s fees, incurred as a result of the removal. Section 1447(c)
provides, in pertinent part: “An order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. §
1447(c). “[A]bsent unusual circumstances, attorney’s fees should not be awarded when the
removing party has an objectively reasonable basis for removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 136 (2005). Having carefully reviewed the parties’ submissions, the Court
finds that while ultimately unsuccessful, defendant had an objectively reasonable basis for

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removal. Accordingly, the Court finds that plaintiff should not be awarded her costs and expenses,
including attorney’s fees.
The Court, therefore, GRANTS plaintiff’s Motion to Remand [docket no. 10] and
REMANDS this case to the District Court of Oklahoma County, State of Oklahoma.
IT IS SO ORDERED this 11th day of April, 2018.

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