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Davis v. Owners Ins. Co.

United States District Court, E.D. Kentucky, Central Division

July 9, 2014

RODNEY G. DAVIS, Plaintiff,
v.
OWNERS INSURANCE COMPANY, Defendant

Page 939

For Rodney G. Davis, Plaintiff: Daniel A. Simons, LEAD ATTORNEY, Simons, Dunlap & Fore, PSC, Richmond, KY; Jennie Y. Haymond, LEAD ATTORNEY, Davis Law, PSC, Richmond, KY.

For Owners Insurance Company, Defendant: Christopher Eric Hutchison, LEAD ATTORNEY, Schiller, Osbourn & Barnes - Louisville, Louisville, KY; David K. Barnes, LEAD ATTORNEY, Schiller, Osbourn, Barnes & Maloney, PLLC, Louisville, KY.

Page 940

MEMORANDUM OPINION AND ORDER

Joseph M. Hood, Senior United States District Judge.

This matter is before the Court upon Plaintiff's Motion to Remand and For Leave to File Amended Complaint. [D.E. 3]. The Defendant filed a Response [D.E. 5], and Plaintiff failed to file a timely Reply. The time for briefing having run, and the Court being otherwise sufficiently advised, this matter is ripe for review.

I. Factual Background

Plaintiff was injured in an automobile accident when his automobile collided with an automobile being driven by Marvin Cazun. Cazun was an uninsured motorist. As a result of Plaintiff's injuries, Plaintiff brought suit against Cazun in Fayette Circuit Court. Defendant, Plaintiff's automobile insurer, filed an intervening complaint against Cazun for any amount Defendant might pay Plaintiff as a result of Plaintiff's underinsured motorist coverage. A default judgment was entered against Cazun in the amount of $644,984.67.

Defendant refused to pay the judgment entered against Cazun and Plaintiff filed suit in Madison Circuit Court seeking to recover the amount of the judgment pursuant to Plaintiff's uninsured motorist coverage with Defendant. Plaintiff filed a claim alleging breach of contract, a claim requesting a declaratory judgment, a claim alleging a violation of KRS 367.170, and a claim for punitive damages. [D.E. 1-1 at 5-8]. On April 25, 2014, Defendant removed the action to this Court on the basis of diversity jurisdiction. [D.E. 1]. Plaintiff has now filed a motion to remand and a motion for leave to file an amended complaint. [D.E. 3].

II. Standard of Review

A. Motion to Remand

" [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). " The notice of removal of a civil action or proceeding shall be filed within 30 days after the

Page 941

receipt by the defendant, through service or otherwise, of a copy of the initial pleading." Id. § 1446(b)(1). " [I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, 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." Id. § 1446(b)(3).

Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. . . . The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). " The party seeking removal bears the burden of establishing its right thereto." Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). " The removal ...


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