Herrera v. Colonial Life Accident Insurance Company

Full title: ESMERALDA HERRERA, Plaintiff, v. COLONIAL LIFE ACCIDENT INSURANCE COMPANY…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jan 18, 2005

No. SA-04-CA-0924-RF (W.D. Tex. Jan. 18, 2005)

Opinion

No. SA-04-CA-0924-RF.

January 18, 2005

ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND GRANTING PLAINTIFF'S VOLUNTARY DISMISSAL

W. ROYAL FURGESON, District Judge

Before the Court are Plaintiff's Motion to Remand to State Court, filed November 4, 2004 (Docket No. 5) and Defendant's Response. After careful consideration, the Court is of the opinion that the Motion to Remand should be DENIED. In addition, the Court GRANTS Plaintiff's request for VOLUNTARY DISMISSAL.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed this suit in the 131^st District Court of Texas County, Texas claiming that Defendant made false representations in selling a life insurance policy to Plaintiff. Defendant removed the matter on the basis of diversity and federal question jurisdiction. Plaintiff's Motion to Remand to State Court contends that remand is appropriate because the amount in controversy does not exceed $75,000 and because Plaintiff's false representations claims are not preempted by ERISA. Plaintiff's Motion also requests this Court to allow Plaintiff to voluntarily dismiss the case if the Court denies Plaintiff's Motion to Remand to State Court.

DISCUSSION

Pursuant to 28 U.S.C. § 1332, district courts have original jurisdiction of all civil actions between citizens of different states where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs. The parties agree that diversity of citizenship exists, but Plaintiff contests that federal jurisdiction is inappropriate because the matter in controversy does not exceed $75,000.

Considering Plaintiff's demand letter and original petition, the Court finds that Defendant has shown by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount.¹ In Plaintiff's July 12, 2004 demand letter to Defendant, Plaintiff's attorney stated that Defendant's false, misleading, unfair, and deceptive acts constituted a producing cause of the following damages and expenses: (i) life insurance proceeds in the amount of $10,000, (ii) mental anguish in the amount of $20,000, and (iii) attorney fees incurred in asserting this claim in the amount of $1,500. The letter proceeded to threaten that if Defendant did not tender an acceptable settlement offer, Plaintiff would file suit for economic damages, mental anguish damages, three times the amount of Plaintiff's economic damages and mental anguish damages, reasonable and necessary attorney fees, court costs, and prejudgment interest. Based on the assertions in the demand letter, Plaintiff sought more than in $75,000 in damages, exclusive of interest and costs, from Defendant.²

1 See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5^th Cir. 1995).

2 See Fairchild v. State Farm Mut. Auto. Ins. Co., 907 F.Supp. 969, 971 (M.D.La. 1995) (stating "the settlement letter is valuable evidence to indicate the amount in controversy at the time of removal.").

In addition to the damage award sought in the demand letter, Plaintiff's original petition alleged that Defendant knowingly and intentionally violated the Texas Deceptive Trade Practices Act ("TDPA"). The TDPA provides for plaintiffs to recover up to three times the amount of damages for mental anguish and economic damages if the trier of fact finds defendant's conduct was committed intentionally.³ Accordingly, Plaintiff's allegation that Defendant acted intentionally would trigger a statutorily-authorized treble damage award and place more than $75,000 in controversy.

3 TEX. BUS. COM. CODE § 17.50 (Vernon 2000).

CONCLUSION

The Fifth Circuit has held that litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints or establish by a legal certainty that the claim is for less than $75,000.⁴ Plaintiff has failed to show that diversity removal was inappropriate, and the Court therefore DENIES Plaintiff's Motion to Remand. The Court also Grants Plaintiff's request to Voluntarily Dismiss this matter.

4 See id. at 1412.

It is therefore ORDERED that Plaintiff's Motion to Remand to State Court (Docket No. 5) is DENIED.

It is further ORDERED that the case is DISMISSED WITHOUT PREJUDICE.