Summary
In Harrison v. Ace American Insurance Company, 2009 U.S. Dist. LEXIS 50806 (M.D. Ala. June 15, 2009), the amount in controversy exceeded $75,000 when the plaintiff "made a claim... for the policy limits of $2,000,000" (emphasis added).
Summary of this case from Brown v. Bankers Life Casualty CompanyOpinion
CASE NO. 2:09-CV-229-WKW [WO].
June 15, 2009
MEMORANDUM OPINION AND ORDER
Patricia P. Harrison filed a wrongful death action against Ace American Insurance Company ("Ace") in the Circuit Court of Barbour County, Alabama, on May 9, 2008. (Compl. (Ex. 23 to Notice).) Harrison's deceased husband, William Michael Harrison, died when a vehicle traveling southbound allegedly struck him in the northbound lane, where he was stooped near the front of a parked truck he drove for ABC Transportation, Inc. ("ABC Transportation"). (First Am. Compl. ¶¶ 1, 12, 20-25 (Ex. 18 to Notice).) Harrison sued ABC Transportation for worker's compensation and Ace for breach of contract for failure to pay coverage benefits under its commercial automobile insurance policy with ABC Transportation. (First Am. Compl. ¶¶ 28-40.) The worker's compensation claim was severed from the case March 11, 2009. (Ex. 1 to Notice.) Less than two weeks after ABC Transportation was severed, Ace removed the case under 28 U.S.C. § 1441(a) on the basis of diversity jurisdiction under § 1332. (Notice ¶ 3 (Doc. # 1).) Harrison filed a timely motion to remand under § 1447(c). (Doc. # 8.) ABC Transportation responded in opposition to remand, with a supporting brief (Docs. # 12 13), and Harrison replied (Doc. # 14). For the following reasons, the motion to remand is due to be denied.
Harrison amended her complaint to substitute the correct name for her husband's employer, Defendant ABC Transportation. Instead of filing an amended complaint with substitutions for each time Defendant was mentioned, however, Harrison merely noted the change and refiled the complaint. ABC Transportation is substituted for Magantran whenever this opinion directly quotes from Harrison's complaint.
Harrison also sued ABC Transportation on the breach-of-contract claim (see First Am. Compl. ¶ 31), but in its supplemental brief on a motion to sever, ABC Transportation stated that the complaint and verbal confirmation from counsel confirmed that the breach-of-contract claim was against Ace only (State Ct. Br. 1-2 (Ex. 5 to Notice).) The Order severing the claim and Harrison's arguments do not suggest otherwise.
The third Defendant was also dismissed, earlier in the case. (See Ex. 4 to Notice.)
ABC Transportation's principal place of business is in Alabama. (First Am. Compl. ¶ 3.) Once ABC Transportation was severed, there was complete diversity of citizenship because Harrison is a citizen of Alabama and Ace is a Pennsylvania corporation under both tests for corporate citizenship (First Am. Compl. ¶¶ 1, 4). See § 1332(a)(1).
A civil action brought in state court over which federal district courts would have original jurisdiction may be removed by a defendant. § 1441(a). A case that is not removable based on the initial pleadings may later be removed within thirty days of defendant's receipt "of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." § 1446(b).
Harrison argues that removal was improper because there is no subject-matter jurisdiction to hear the case. (Mot. ¶ 25.) Challenges to removal filed within thirty days of removal, whether based on procedural defects or lack of jurisdiction, are challenges to the propriety of removal itself. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 n. 64 (11th Cir. 2007). "[I]n assessing the propriety of removal, the court considers the document received by the defendant from the plaintiff — be it the initial complaint or a later received paper — and determines whether that document and the notice of removal unambiguously establish federal jurisdiction." Id. at 1213. "[T]he district court has before it only the limited universe of evidence available when the motion to remand is filed — i.e., the notice of removal and accompanying documents." Id. at 1214.
Those documents must "unambiguously" establish jurisdiction. Lowery, 483 F.3d at 1213. The jurisdictional amount must be "stated clearly on the face of the documents before the court, or readily deducible from them." Id. at 1211. If the evidence does not unambiguously establish jurisdiction in this way, "neither the defendants nor the court may speculate in any attempt to make up for the notice's failings." Id. at 1214-15.
"[I]n some limited circumstances, a defendant may effectively amend a defective notice of removal upon receipt of additional evidence that supplements the earlier-filed notice." Lowery, 483 F.3d at 1214 n. 66. But because the face of Harrison's complaint alone establishes jurisdiction, it is unnecessary to resolve whether an affidavit filed with Ace's response may be considered for determining jurisdiction. For the same reason, Harrison's motion to strike the affidavit (Doc. # 15) is due to be denied as moot.
Harrison opposes removal, arguing that the amount in controversy is not unambiguously established by the complaint. (Mot. ¶ 24.) Although the complaint never explicitly alleges damages in excess of $75,000, it does allege that in late 2007, Harrison "made a claim with [ABC Transportation] for uninsured and underinsured motorist coverage policy limits" on policies described earlier in the complaint, and that the claim was denied (First Am. Compl. ¶¶ 26-27). (See Resp. Br. 2-3.) The only policy alleged earlier in the complaint, which is described with a specific reference to company name and policy number, is the one Ace issued to ABC Transportation for commercial automobile insurance. (See First Am. Compl. ¶¶ 9-13.) The complaint acknowledges that the limit for that policy is $2,000,000. (First Am. Compl. ¶ 15.)
Diversity jurisdiction requires there to be an amount in controversy that exceeds $75,000. § 1332(a).
Harrison argues that because her claim for the policy limits was directed to ABC Transportation, however, and not to Ace, it cannot serve as a proxy for the damages at issue in her breach of contract claim against Ace. (See Reply 3-4.) This argument fails. Lowery does not impose hyper-technical rules on litigants seeking to remove cases that clearly belong in federal court. The removal rules as interpreted by Lowery protect against "speculation" as to whether jurisdiction exists. See Lowery, 483 F.3d at 1211. It is the "absence of factual allegations" that should prevent courts from determining the existence of jurisdiction "by looking to the stars." Id. at 1215 (emphasis added).
No divination is necessary here. It is common practice in Alabama to make demands on an insured for the benefits due under under an insurance policy. The facts as alleged in the complaint establish that Harrison made a claim to ABC Transportation for the policy limits of $2,000,000 on a policy issued to ABC Transportation by Ace. That much money, therefore, to a legal certainty, is in controversy with respect to the breach-of-contract claim against Ace. Jurisdiction is unambiguously established by the face of the complaint because it alleges that Harrison made a demand for policy limits, which exceed $75,000, and on a policy issued by the defendant.
The following footnote to the response Ace filed to Harrison's motion to strike states the argument accurately:
It is important to note that, although Plaintiff's complaint alleges that the policy limits demand was made on [ABC Transportation], the demand was made for benefits under the Policy. Thus, Plaintiff was valuing her total claims under the Policy at $2,000,000.00. The demand was sent to ABC Transportation, as Defendant's insured. Such a demand was no different than if it had been to Defendant, itself. Further, Lowry [sic] only requires that the document showing the value of Plaintiff's claims come from the Plaintiff[;] it does not require it be directed to the defendant who is ultimately sued, Lowery at 1213 n. 63. By making the demand articulated in paragraph 26 of Plaintiff's complaint, Plaintiff valued her claims against the Policy at $2,000,000.00. Plaintiff has sued Defendant for benefits as issuer of the Policy. Thus, Plaintiff has previously represented that the amount in controversy in this action is at least $2,000,000.00. The fact that the demand was made on [ABC Transportation] rather than Defendant is completely irrelevant to the amount in controversy in this action.
(Resp. to Mot. Strike 3 n. 1 (Doc. # 16).)
Cf. Warth v. State Farm Fire Cas. Co., 792 F. Supp. 101, 103 (M.D. Fla. 1992) ("Due to the fact that Plaintiffs in this case have not plead or represented to this Court the damages they seek, the face amount of the policy does not control on the issue of the threshold jurisdictional amount." (emphasis added)). Incidentally, the court in Lowery stated that demand letters establishing an amount in controversy exceeding $75,000 and filed on removal may be the basis for removal under § 1446(b). Lowery, 483 F.3d at 1212 n. 62; cf. id. at 1213 n. 66 (noting exception related to letters filed later). In this case, jurisdiction is established in even one less step removed. The complaint itself alleges that Harrison made a claim on the policy's insured for the policy limits. The complaint then is the documentation of a demand sufficient to establish jurisdiction.
Accordingly, it is ORDERED that Harrison's motion to remand (Doc. # 8) is DENIED. It is further ORDERED that Harrison's motion to strike (Doc. # 15) is DENIED as moot.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders: Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal See also 3pro se 4. Effect of a notice of appeal: 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , — 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , L .Ed.2d 178 (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).