Gade v. State Farm Mutual Automobile Insurance Company

Filing 79

ENTRY ORDER Denying 69 Plaintiff's Motion to Remand and Denying 72 Defendant's Motion for Costs and Fees Incurred. Signed by Chief Judge Christina Reiss on 4/27/2015. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
TERESA GADE,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.

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2015 APR 27 PH 3: 59
BY

CL

D:::P JTY CLEHil
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Case No. 5:14-cv-00048

ENTRY ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND
DENYING DEFENDANT'S MOTION FOR COSTS AND FEES INCURRED
(Docs. 69, 72)

Pending before the court is Plaintiff Teresa Gade's motion to remand (Doc. 69)
and Defendant State Farm Mutual Automobile Insurance Company's motion for costs
and fees incurred (Doc. 72). Plaintiff seeks remand of this case to the Vermont Superior
Court, arguing that Defendant cannot satisfy its burden to show the amount in
controversy exceeds $75,000 exclusive of interests and costs, as required by 28 U.S.C.

§ 1332(a) for diversity jurisdiction. Defendant opposes the motion, contending that
Plaintiffs motion is untimely and that there is no doubt that the amount in controversy
exceeds $75,000. Defendant requests that it be awarded the costs and fees it incurred in
opposing the motion to remand, which it contends is meritless.
Todd D. Schlossberg, Esq. represents Plaintiff. Richard H. Wadhams, Jr., Esq.
and Robin 0. Cooley, Esq. represent Defendant. The court took this matter under
advisement on April 15, 20 15.
I.

Factual and Procedural Background.

Plaintiff brought this action against Defendant, her automobile insurance carrier,
for breach of contract and bad faith denial of insurance coverage based on claims she
made for injuries she allegedly sustained in two automobile accidents. Plaintiff asserts

that she is entitled to uninsured motorist benefits for a January 3, 2008 collision,
involving a motorist who left the scene of the accident. She alleges that as a result of the
2008 collision, she sustained physical injuries to her spine for which she underwent
surgery, and she suffered pain and loss of enjoyment of life, which she continues to
experience. Plaintiff alleges that she was involved in another accident on May 21, 2009,
for which she obtained a settlement of $100,000. She alleges that she continues to suffer
pain and loss of enjoyment of life as a result of this second accident.
On December 31, 2013, Plaintiff filed this action in the Vermont Superior Court,
Chittenden Unit. On March 13, 2014, Defendant removed the action to this court under
28 U.S.C. §§ 1332(a), 1441, 1446(b), alleging diversity jurisdiction. On March 17, 2014,
Plaintiff filed a motion to remand, arguing that Defendant could not demonstrate that the
amount in controversy exceeds $75,000. She, however, withdrew the motion on March
20, 2014.

II.

Conclusions of Law and Analysis.
A.

Whether Plaintiff's Motion to Remand is Timely.

Defendant first asserts that Plaintiffs motion is untimely because she filed it more
than thirty days after Defendant filed the notice of removal. "A motion to remand the
case on the basis of any defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C.
§ 1447(c). In considering a case where "[t]he crux of defendants' waiver claim is that by
failing to raise the sufficiency of the amount in controversy in the district court in a
timely motion to remand pursuant to section 144 7( c)," the Second Circuit ruled:
the subject matter jurisdiction of the federal courts is too basic a concern to
the judicial system to be left to the whims and tactical concerns of the
litigants. Litigants, therefore, cannot waive subject matter jurisdiction by
express consent, conduct, or estoppel because they fail[] to challenge
jurisdiction early in the proceedings.

United Food & Commercial Workers Union, Loca/919, AFL-CIO v. CenterMark
Properties Meriden Square, Inc., 30 F .3d 298, 303 (2d Cir. 1994) (citation and internal

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quotation marks omitted). Accordingly, Plaintiffs motion to remand is not untimely
under 28 U.S.C. § 1447(c).

B.

Whether Plaintiff is Entitled to a Remand.

Defendant bears the burden of demonstrating that the amount in controversy
exceeds $75,000. See Sec. Plans, Inc. v. CUNA Mut. Ins. Soc., 769 F.3d 807, 814 n.5 (2d
Cir. 2014) ("A party invoking the jurisdiction of the federal court has the burden of
proving that it appears to a reasonable probability that the claim is in excess of the
statutory jurisdictional amount.") (quoting Scherer v. Equitable Life Assurance Soc y of
the US., 347 FJd 394, 397 (2d Cir. 2003)). "This burden is hardly onerous, however,
for we recognize a rebuttable presumption that the face of the complaint is a good faith
representation ofthe actual amount in controversy." Id (quoting Scherer, 347 F.3d at
397).
"When a plaintiff invokes federal-court jurisdiction, the plaintiffs amount-incontroversy allegation is accepted if made in good faith." Dart Cherokee Basin
Operating Co. v. Owens, 135 S. Ct. 547, 553 (2014). "Similarly, when a defendant seeks
federal-court adjudication, the defendant's amount-in-controversy allegation should be
accepted when not contested by the plaintiff or questioned by the court." Id "If the
plaintiff contests the defendant's allegation, ... both sides submit proof and the court
decides, by a preponderance of the evidence, whether the amount-in-controversy
requirement has been satisfied." Id. at 553-54. "[F]ederal courts permit individual
plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and
to obtain a remand to state court, by stipulating to amounts at issue that fall below the
federal jurisdictional requirement." Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345,
1350 (2013).
In opposing remand, Defendant observes that at the time of the Complaint,
Plaintiff asserted claims for medical costs of $44,998.48 for the 2008 collision and
$71,540.48 for the 2009 collision. When Plaintiff submitted her initial disclosures, she
asserted medical costs of$51,249.48 for the 2008 collision, medical costs of$94,876.94
for the 2009 collision, and $4,175 in lost income, which she later supplemented to claim
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an additional $4,616 in lost income, in addition to her claims of pain and suffering and
loss of enjoyment of life for an approximately six year period. Defendant points out that
Plaintiff has sought payment for the full value of her uninsured and underinsured motorist
policies, which collectively provide total coverage limits of$500,000. Plaintiff has
presented no evidence to the contrary and has not stipulated that she will seek a damages
award of less than $75,000, exclusive of interest and costs.
Plaintiff contends that the evidence on which Defendant relies cannot be
considered because it was not part of the record at the time of removal. The court
"evaluate[s] jurisdictional facts, such as the amount in controversy, on the basis of the
pleadings, viewed at the time when defendant files the notice of removal." Blockbuster,
Inc. v. Galena, 472 F.3d 53, 56-57 (2d Cir. 2006). "Where the pleadings themselves are

inconclusive as to the amount in controversy, however, federal courts may look outside
those pleadings to other evidence in the record." United Food, 30 F.3d at 305. The
Complaint does not specify the amount in controversy, but it refers to Plaintiffs "medical
bills and lost income" and her "entitle[ment] to payment of uninsured/under-insured
motorist insurance benefits under Defendant['s] policies[.]" (Doc. 5 at 8, ~ 66.)
Accordingly, the Complaint incorporates by reference the evidence on which Defendant
now relies.
Plaintiffs recovery of the full value of her uninsured and underinsured policies
which she has demanded would, alone, entitle her to $500,000. 1 She has also claimed
medical costs in excess of$100,000. Based upon the record before the court, Defendant
has satisfied its burden to prove by a preponderance of the evidence that Plaintiff seeks

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Hall v. State Farm Mutual Automobile Insurance Co., on which Plaintiff relies, is
distinguishable because "the plaintiffs complaint sought damages in excess of$15,000.00[,]"
and other than a demand letter that requested the policy limits of $300,000, the court had no
factual basis for concluding the amount in controversy had been met. See Hall v. State Farm
Mut. Auto. Ins. Co., 2014 WL 2987678, at *2 (M.D. Fla. July 2, 2014); cf Noyola v. State Farm
Lloyds, 2013 WL 3353963, at *3 (S.D. Tex. July 3, 2013) (finding, where the policy limits were
$180,775.00, "the insurance policy implicates an amount in controversy well-above the
jurisdictional threshold").
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damages, exclusive of interests and costs, well in excess of the $75,000 required by 28
U.S.C. § 1332(a). Plaintiffs motion to remand is therefore DENIED.
C.

Whether Defendant is Entitled to Costs and Fees.

Defendant requests its costs and fees for filing a response to Plaintiffs motion to
remand, arguing that Plaintiff lacked factual and legal support for the relief requested
therein. (Doc. 72.) As Plaintiff points out, costs and fees are generally not awarded in
adjudicating a motion to remand. See Circle Indus. USA, Inc. v. Parke Canst. Grp., Inc.,
183 F .3d 105, 108 (2d Cir. 1999) ("Although this statutory language clearly provides for
attorneys' fees in connection with an order of remand, nothing in the statute allows for a
grant of attorneys' fees where, as here, the defendant successfully resists such an
order."); Fleet Nat'! Bank v. Weightman Grp., 2003 WL 21781967, at *3 (S.D.N.Y. June
19, 2003) ("[Section 1447(c)], by its terms, only provides that sanctions may be awarded
on remand for costs incurred 'as a result of the removal."').
The only other basis for an award of fees and costs is Rule 11 of the Federal Rules
of Civil Procedure, which provides:
By presenting to the court a pleading, written motion, or other paperwhether by signing, filing, submitting, or later advocating it-an attorney
or unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances: ... the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law[.]
Fed. R. Civ. P. 11(b)(2).
"A motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b)." Fed. R. Civ. P.
11(c)(2). Rule 11 contains a "safe harbor" which allows a non-moving party to avoid
sanctions if the original motion "is withdrawn or appropriately corrected within 21
days[.]" !d.; see also Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce
Factory, Ltd., 682 F.3d 170, 175 (2d Cir. 2012) ("The safe-harbor provision is a strict
procedural requirement."). Accordingly, even if Defendant is correct that Plaintiffs
motion to remand failed to reflect adequate research and was not filed in good faith,
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Defendant has not complied with Rule 11 and cannot receive fees and costs on that basis.
Defendant's motion for costs and fees is therefore DENIED.
CONCLUSION

For the foregoing reasons, the court DENIES Plaintiffs motion to remand (Doc.
69). The court DENIES Defendant's motion for costs and attorney's fees incurred (Doc.
72).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this ~day of April, 2015.

Christina Reiss, Chief Judge
United States District Court

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