Endrawes et al v. Safeco Insurance Company

Filing 28

MEMORANDUM AND ORDER: Accordingly, Plaintiffs' Motion to Alter or Amend the Judgment to Dismiss and for Leave to Amend Complaint (Docket No. 21) is GRANTED to the limited extent explained herein and DENIED in all other respects. Signed by District Judge Aleta A. Trauger on 10/23/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

HANAN ENDRAWES and
SHENOUDA HENIN,
Plaintiffs
v.
SAFECO INSURANCE CO.,
Defendant

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NO. 3:17-cv-0929
JUDGE TRAUGER

MEMORANDUM AND ORDER
Pending before the court are Plaintiffs’ Motion to Alter or Amend the Judgment to Dismiss
and for Leave to Amend Complaint (Docket No. 21), Defendant’s Response in Opposition (Docket
No. 23), and Plaintiffs’ Reply (Docket No. 27). For the reasons stated herein, Plaintiffs’ Motion to
Alter or Amend is GRANTED in limited part, simply to clarify the court’s denial of the Motion to
Remand, and DENIED in all other respects. Plaintiffs’ Motion for Leave to Amend Complaint is
DENIED.
By Order dated August 25, 2017, the court granted Defendant’s Motion to Dismiss this case
and denied Plaintiffs’ Motion to Remand the case to state court. Docket No. 19. Plaintiffs now ask
the court to vacate that Order, to find that the court has no subject matter jurisdiction over this action,
and to remand the case to state court. Alternatively, Plaintiffs seek leave to amend their complaint.
MOTION TO ALTER OR AMEND
The Court may grant a Rule 59(e) motion to alter or amend if there is (1) a clear error of law;
(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005).

Motion to Remand
Plaintiffs argue that the court should have granted Plaintiffs’ Motion to Remand for lack of
subject-matter jurisdiction. In their Motion to Remand this case to state court, Plaintiffs asserted that
the action was improperly removed to federal court because it did not satisfy the amount required
for federal diversity jurisdiction. Plaintiffs contend that the court should have granted the Motion to
Remand for lack of subject matter jurisdiction first, before proceeding to the Motion to Dismiss.
The court’s prior Memorandum could have explained more clearly why Plaintiffs’ Motion
to Remand would be denied,1 but denial of that motion was not incorrect. In their Complaint,
Plaintiffs sought compensatory damages for personal injury, breach of contract, and negligent
infliction of emotional distress, plus statutory damages for bad faith, plus treble damages for unfair
and deceptive acts under the Tennessee Consumer Protection Act (“TCPA”). Plaintiffs claimed
damages for medical expenses, past and future; physical pain, past and future; mental, emotional
suffering and grief, past and future; loss of enjoyment of life, past and future; permanent impairment
and partial disability; lost wages and lost earning capacity; loss of consortium; and severe emotional
distress. Docket No. 1-1.
Plaintiffs placed no specific monetary amount or limit on the damages they sought, and they
did not disclaim any damages over $75,000. Plaintiffs could have pled to avoid federal jurisdiction,
but they did not.2 Defendant’s Notice of Removal stated that the amount in controversy in this action

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The court’s statement that the Motion to Remand was “moot” was not an accurate
choice of words.
2

A plaintiff is generally considered the “master of his complaint” and can plead to
avoid federal jurisdiction. Homoki v. Rivers Edge Tree Stands, 2012 WL 6631043 at * 1 (N.D.
Ohio Dec. 19, 2012); Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 407 (6th Cir.
2007).
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exceeded $75,000, the amount required for this court to have diversity jurisdiction. Docket No. 1.
A federal district court has original jurisdiction over any civil action where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and the matter is between
citizens of different states. 28 U.S.C. § 1132(a).
In their Motion to Remand, Plaintiffs argued that the amount in controversy did not exceed
$75,000. Plaintiffs attempted to explain that the policy limits they sought under the insurance policy
at issue were $50,000;3 that the claim for statutory damages should not be included in the calculation
because Defendant argued that claim should be dismissed; and that the treble damages sought under
the TCPA, likewise, should not be included in the calculation because Defendant also argued that
claim should be dismissed. Docket No. 12.
The determination of federal jurisdiction in a diversity case is made at the time of removal.
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000); Anderson v. Mid-Continent
Aircraft Corp., 2015 WL 13188357 at * 1 (W.D. Tenn. April 6, 2015). Therefore, the court looks
to whether the action was properly removed in the first place. Rogers, 230 F.3d at 871-72. The
determination of removability is at the time that the complaint is filed, not when Plaintiffs
recharacterize the value of their claims to support their motion to remand. Homoki v. Rivers Edge
Tree Stands, 2012 WL 6631043 at * 2 (N.D. Ohio Dec. 19, 2012).
At the time of removal in this case, Plaintiffs sought not only compensatory damages, but
also statutory and treble damages. At the time of removal, Plaintiffs sought the policy limits, money
for past and future damages, and additional damages for the alleged bad faith and deceptive

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Defendant notes that this amount is “per person,” so the total policy limits for
both Plaintiffs is $100,000. Docket No. 23.
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practices.4 Moreover, at the time of removal, Plaintiffs’ own valuation of the case, and the amount
Plaintiffs had demanded from Defendant for these claims, was $100,000. Docket No. 1-3. Although
a demand letter is not competent evidence to prove or disprove the validity or amount of a disputed
claim, the court may consider it for “another purpose,” Fed. R. Evid. 408(b), such as inquiring into
whether the jurisdictional threshold of the amount in controversy has been met. Griffith v. Aleman,
2016 WL 2869794 at * 3 (W.D. Tenn. May 17, 2016); Homoki, 2012 WL 6631042 at * 2-3.
Defendant’s later challenge to the statutory and treble damages does not change the fact that
those damages were sought at the time of removal. Diversity jurisdiction is determined by the
amount in controversy, not whether Defendant believes the claims to have merit. As noted in
Homoki, “Adopting Plaintiffs’ argument would destroy all instances of diversity jurisdiction, for it
is the rare defendant who admits the veracity of his opponent’s claim.” Homoki, 2012 WL 6631042
at * 3. Likewise, the fact that Defendant did not offer to settle this matter for the full amount Plaintiff
sought has no bearing on the amount in controversy exceeded $75,000. Id.5
For the reasons stated herein, the Motion to Remand was correctly denied. The court finds
that its prior Order and Memorandum should be amended simply to add this further explanation.

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Plaintiffs’ reliance upon Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d 250 (6th
Cir. 2011) is misplaced. In that case, there was no claim for compensatory, statutory or treble
damages as sought herein. The issue, in that declaratory judgment action, was solely whether
policy limits of $100,000 or $25,000 applied.
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Plaintiffs argue, with no citation to authority, that the court would use the same
analysis to determine the amount in controversy that it used to dismiss Plaintiffs’ claims, and,
thus, it should exclude the statutory claims it dismissed. Docket No. 27 at 7. The court, however,
looks to the amount in controversy at the time of removal. In any event, the court dismissed ALL
of Plaintiffs’ claims, so under Plaintiffs’ argument, there is no longer any amount in controversy.
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Motion to Dismiss
Plaintiffs also ask the court to alter or amend its prior Order and deny Defendant’s Motion
to Dismiss. Plaintiffs argue that the court did not specifically address their causes of action for
personal injury and emotional distress. Personal injury and emotional distress are damages, not
causes of action. The Complaint alleges that the third-party driver’s negligence caused personal
injuries and emotional distress, among other damages, to Plaintiffs. Docket No. 1-1. The Complaint
alleges that Defendant is responsible for those damages under its policy with Plaintiffs, but those
damages are not separate causes of action.
Plaintiffs contend that dismissal of their claims is a “manifest injustice” because if the court
does not alter or amend its prior Order that dismissed their claims, “the plaintiffs will be prejudiced
and will not be able to recover anything.” Docket No. 21-1 at 5. Plaintiffs are always prejudiced and
not able to recover when their claims are dismissed. Plaintiffs assert that their damages “are certain,
very clear and will be lost forever.” Id. That may be true, but it does not mean that Plaintiffs have
stated claims for which relief may be granted against Defendant in this case.
Plaintiffs’ other arguments concerning their Motion to Alter or Amend the prior Order are
simply re-hashing arguments previously made and are not persuasive. Rule 59(e) does not afford
parties an opportunity to reargue their case. Leisure Caviar, LLC v. United States Fish and Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010). Accordingly, Plaintiffs’ Motion to Alter or Amend, in all
respects except the limited further explanation above, is denied.
MOTION FOR LEAVE TO AMEND COMPLAINT
Plaintiffs’ Motion for Leave to Amend Complaint is also denied. When a motion to amend
comes after a judgment against a plaintiff, the plaintiff must “shoulder a heavier burden.” Leisure
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Caviar at 616.6 Instead of meeting only the requirements of Fed. R. Civ. P. 15, the plaintiff must also
meet the requirements of reopening a case under Rules 59 or 60. Id. As indicated above, Plaintiffs
have not carried their burden, under Rule 59, of persuading the court to reopen this case.
In any event, nothing in the Proposed Amended Complaint (Docket No. 25) changes the
court’s prior ruling. The Proposed Amended Complaint could not withstand a motion to dismiss.
Plaintiffs have still not alleged sufficient facts to support a breach of contract claim, for the same
reasons explained in the court’s prior Memorandum (Docket No. 18). The Proposed Amended
Complaint also fails to allege facts sufficient to support a claim for bad faith or unfair and deceptive
trade practices for the same reasons explained in the court’s prior Memorandum. Accordingly, the
Motion for Leave to Amend, being both too late and futile, is also denied.
CONCLUSION
Accordingly, Plaintiffs’ Motion to Alter or Amend the Judgment to Dismiss and for Leave
to Amend Complaint (Docket No. 21) is GRANTED to the limited extent explained herein and
DENIED in all other respects.
IT IS SO ORDERED.
ENTER this 23rd day of October 2017.
___________________________________
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

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“If a permissive amendment policy applied after adverse judgments, plaintiffs
could use the court as a sounding board to discover holes in their arguments, then reopen the case
by amending their complaint to take account of the court’s decision.” Leisure Caviar at 616; see
also Michigan Flyer LLC v. Wayne County Airport Authority, 860 F.3d 425, 431 (6th Cir. 2017).
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