United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
B. Atkins United States Magistrate Judge.
matter is before the Court on Plaintiff Hershel Rife's
motion to remand for lack of diversity jurisdiction against
Defendant Nationwide Insurance. [DE #15]. For the reasons set
forth below, the Court will deny the motion to remand.
following facts are undisputed. On October 5, 2018, following
a fire causing damage to Plaintiff's home, Plaintiff
initiated the present action against Defendant for a breach
of contract claim in Pike County Circuit Court. DE #1-3 at 3
Complaint, Plaintiff alleged that his property suffered
severe damage, “rendering it totally uninhabitable[,
]” and that Defendant, as insurer, had not paid the
full amount owed to him. Id. at 4-5. Plaintiff
requested the following relief: “[c]ompensatory
[d]amages and payment under the policy of the full damage
account, accounting for any payment already made”;
“the lost rental income sustained as a result of
Defendant's action or inaction”; and the costs
herein expended plus a reasonable contribution to his
attorney fees.” Id. at 5.
October 24, 2018, Defendant removed the action on the basis
of diversity jurisdiction. DE #1 (Notice of Removal). On
March 21, 2019, Plaintiff filed the present motion to remand
(DE #15) on the grounds that the amount in controversy did
not exceed the jurisdictional minimum. Defendant having
responded on April 4, 2019 (DE #18) and Plaintiff having
replied on April 18, 2019 (DE #19), the motion is now ripe
for the Court's review.
general matter, a defendant may remove a civil case brought
in state court only if it could have been brought there
originally. See 28 U.S.C. § 1441, 1446. A
federal district court has original “diversity”
jurisdiction over all civil actions where “the amount
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs” and the suit is
between “citizens of different states.” 28 U.S.C.
§ 1332(a)(1). This amount is determined as it exists at
the time of removal. Saint Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 289-90 (1938); Rogers v.
Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir.
federal court are courts of limited jurisdiction, a defendant
seeking removal from the state court has the burden of
proving that these diversity jurisdiction requirements are
met. Wilson v. Republic Iron & Steel Co., 257
U.S. 92, 97 (1921). The defendant must show by a
“preponderance of the evidence” that the
plaintiff's claims are greater than $75, 000. Gafford
v. Gen. Elec. Co., 997 F.2d 150, 157 (6th Cir. 1993),
abrogated on other grounds by Hertz v. Friend, 559
U.S. 77 (2010). The Sixth Circuit requires defendants who are
faced with an indeterminate state court complaint to make an
independent inquiry as to the extent of the plaintiff's
damages prior to filing the notice of removal. Cole v.
Great Atlantic & Pacific Tea Co., 728 F.Supp. 1305,
1309 (E.D. Ky. 1990) (citations omitted). A defendant does
not meet this burden if it establishes only “a mere
possibility that the jurisdictional amount is
satisfied.” Everett v. Verizon Wireless, Inc.,
460 F.3d 818, 829 (6th Cir.2006) (emphasis added).
case, the removal by the Defendant was based on diversity
jurisdiction under 28 U.S.C. § 1332. There is no dispute
that the parties are diverse. The amount-in-controversy
serves as the basis for the instant motion. Plaintiff asserts
that remand is appropriate in this instance because the Court
cannot meet the amount in controversy requirement. In support
of this argument, Plaintiff:
unequivocally state[s] that he will not seek nor will he
accept damages in excess of $75, 000.00 inclusive of any
punitive damages, attorneys' fees, interest, fees, costs,
and the fair value of any injunctive relief, and any other
and further relief as the Court deems appropriate … As
such, no basis remains to support diversity jurisdiction.
DE #15-1 at 1; see also DE #15-2 (Plaintiff's
Defendant opposes remand. To meet its burden for removal, the
Defendant relies on Plaintiff's building contractor's
original assessment that resulting damages were $211, 710.00-
double the $105, 000.00 paid for the loss- and
Defendant's basis for removal See DE #18-2 at 3.
Accordingly, the case presents two questions: first, whether
the Court had jurisdiction when removal ...