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Rife v. Nationwide Insurance

United States District Court, E.D. Kentucky, Southern Division, Pikeville

July 1, 2019



          Edward B. Atkins United States Magistrate Judge.

         This 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.

         I. BACKGROUND

         The 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).

         In its 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.

         On 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.

         II. STANDARD

         As a 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. 2000).

         Because 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).


         In this 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 Affidavit).

         The 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 ...

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