Gruber v. State Auto Property and Casualty Insurance Company et al

Filing 9

ORDER ON MOTION TO REMAND. The Court takes this matter under advisement and ORDER Plaintiff to file, on or before seven days from the date of this Order, a more definitive affidavit or stipulation limiting the damages that may be awarded to him to &# 036;75,000 or less, exclusive of interest and costs, if he indeed intended to limit himself. Should the Plaintiff fail to file such an affidavit or stipulation, the Court will enter an appropriate order with respect to the motion to remand. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RUSSELL GRUBER,
Plaintiff,
VS.
STATE AUTO PROPERTY AND
CASUALTY INSURANCE COMPANY,
et al,
Defendants.

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June 14, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-00151

ORDER ON MOTION TO REMAND
Defendants State Auto Property & Casualty Insurance Company and Natalie
Thomas timely removed this insurance dispute to this Court pursuant to diversity
jurisdiction, 28 U.S.C. § 1332.

Plaintiffs filed their Motion to Remand (D.E. 7),

conceding the diverse citizenship of the parties, but stating that the required amount in
controversy of 28 U.S.C. § 1332(a) has not been met.
Plaintiff’s Original Petition expressly states that he seeks “less than $75,000,
including damages of any kind, penalties, costs, expenses, pre-judgment interest, and
attorney fees.” D.E. 1-3, p. 17, ¶ 70. Defendants argue that this representation is not
binding, is contradicted by Plaintiff’s request for a jury to liquidate damages, and that
Plaintiff’s demand letter, when juxtaposed against his claims that include punitive,
exemplary, or additional damages, renders a sum sought that exceeds $75,000. D.E. 1, 8.
In response, Plaintiff filed a stipulation, signed by his attorney, stating that Plaintiff will
not seek damages in excess of $75,000 in this lawsuit. D.E. 6.
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The jurisdictional facts supporting removal must be judged at the time of the
removal. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995). However, if
the basis for jurisdiction is ambiguous at the time of removal, the Court may consider
post-removal affidavits to clarify or confirm jurisdictional facts. Gebbia v. Wal–Mart
Stores, Inc., 233 F.3d 880 (5th Cir. 2000); Asociacion Nacional de Pescadores a Pequena
Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988
F.2d 559, 565 (5th Cir.1993).1
The problem here is that Plaintiff’s stipulation does not expressly state that he
“will not accept” damages in an amount in excess of $75,000. See, Wear v. American
Time Mfg., No. SA–12–CV–763–XR, 2012 WL 6629603, 2012 U.S. Dist. LEXIS
179288, *5 (W.D. Tex. Dec.19, 2012) (a stipulation without the “I will not accept”
language was insufficient). While this Court is reluctant to require any magic words for
the stipulation, the Court also acknowledges that Defendants’ construction of Plaintiff’s
pleading is plausible and could prompt a jury to assess damages well in excess of
$75,000.
Thus some ambiguity persists. To resolve this ambiguity consistent with the
Court’s duty to construe matters in favor of remand while discouraging manipulation of
federal jurisdiction, the Court takes this matter under advisement and ORDERS Plaintiff
to file, on or before seven days from the date of this Order, a more definitive affidavit or
stipulation limiting the damages that may be awarded to him to $75,000 or less, exclusive
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The ANPAC case was abrogated on other grounds—the order in which subject matter and personal jurisdiction
challenges should be addressed—in Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th Cir.1998), rev'd, 526 U.S.
574 (1999).

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of interest and costs, if he indeed intended to limit himself. Should Plaintiff fail to file
such an affidavit or stipulation, the Court will enter an appropriate order with respect to
the motion to remand.
ORDERED this 14th day of June, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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