United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
Richard Cox (“Cox”) filed this action in the
Circuit Court of Montgomery County, Alabama on June 20, 2017,
alleging an uninsured motorist claim against defendants Auto
Owners Insurance Company (“Auto Owners”) and
Electric Insurance Company (“Electric”). On July
21, 2017, defendant Electric removed the case to this court
solely on the basis of diversity of citizenship jurisdiction.
See 28 U.S.C. § 1441 and 28 U.S.C. § 1332.
Cox is a citizen of Alabama, and the notice of removal
asserts that defendant Electric is a Massachusetts
corporation with its principal place of business in
Massachusetts. Electric further asserts that Auto Owners is a
Michigan corporation with its principal place of business in
Michigan. Although Cox seeks compensatory and punitive
damages, his complaint does not specify an amount of damages.
Electric claims that because it has been named as a
defendant, and its insurance policy is secondary coverage to
Auto Owners, “[i]n order to make a claim against
Electric Insurance, Plaintiff Cox must be seeking more than
the $100, 000.00 policy of primary insurer, Auto Owners
Insurance. Therefore, the amount in controversy exceeds the
sum of $75, 000.00.” (Doc. # 1 at 5). On that basis,
pursuant to 28 U.S.C. § 1441, Electric
removed the case to this court.
pending before the court is the plaintiff's timely motion
to remand in which he asserts that the defendants “have
not met their burden of demonstrating by a preponderance of
the evidence that the amount in controversy exceeds $75,
000.00.” (Doc. # 10 at 1). Pursuant to 28 U.S.C. §
636(c)(1) and M.D. Ala. LR 73.1, the parties have consented
to the United States Magistrate Judge conducting all
proceedings in this case and ordering the entry of final
judgment. Upon consideration of the motion to remand, the
briefs filed in support of and in opposition to the motion to
remand, and for the reasons which follow, the court concludes
that the motion to remand is due to be GRANTED, and this case
remanded to the Circuit Court of Montgomery County, Alabama.
STANDARD OF REVIEW
civil case filed in state court may be removed by the
defendant to federal court if the case could have been
brought originally in federal court.” Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.
1996) (citing 28 U.S.C. § 1441(a)), abrogated on
other grounds by Cohen v. Office Depot, Inc., 204 F.3d
1069 (11th Cir. 2000). When a case is removed to federal
court, a removing defendant's burden to establish federal
jurisdiction is “a heavy one.” Pacheco de
Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir.
1998). Any questions or doubts are to be resolved in favor of
returning the matter to state court on a properly submitted
motion to remand. Burns v. Windsor Ins. Co., 31 F.3d
1092, 1095 (11th Cir. 1994).
removed this case solely on the basis of the court's
diversity jurisdiction. To establish diversity jurisdiction,
the removing party must not only demonstrate that the
properly-joined parties are completely diverse, but, where
the amount in controversy is not evident from the face of the
complaint, the removing party must also demonstrate that the
amount in controversy exceeds the $75, 000 jurisdictional
minimum set by 28 U.S.C. § 1332. Pretka v. Kolter
City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010).
Electric filed the notice of removal, even though in the
notice of removal, Electric asserts that both defendants were
served on June 22, 2015. (Doc. # 1 at 2). “28 U.S.C.A.
§ 1446(a) requires that all defendants who have been
served must join in the notice of removal. Tri-Cities
Newspapers, Inc. v. Tri-Cities Printing Pressmen and
Assistants' Local 349, 427 F.2d 325, 326-27 (5th
Cir. 1970); Newman v. Spectrum Stores, Inc., 109
F.Supp.2d 1342, 1345 (M.D. Ala. 2000) (Albritton,
C.J.).” Lampkin v. Media General, Inc., 302
F.Supp.2d 1293, 1294 (M.D. Ala. 2004). Electric further
asserts in the notice of removal that “counsel for
Electric Insurance has communicated with Jesse K. Anderson,
counsel for Auto Owners Insurance, and he has informed of his
client's consent to this removal.” (Doc. # 1 at 3,
¶ 8). That is the extent of Auto Owners' alleged
joinder or consent, and it is simply insufficient.
“[B]ecause §1446 is to be construed strictly . .
.there is no such thing as implied joinder or consent.
Instead, an official, affirmative and unambiguous joinder or
consent to the notice of removal is required.” Tate
v. Assurant Speciality Property, 2017 WL 2274332, *3
(M.D. Ala. May 24, 2017) (Case No. 2:16cv836-SRW) (quoting
Lampkin, 302 F.Supp.2d at 1294. Electric filed its
notice of removal more than thirty days ago. However, Auto
Owners has neither joined in the removal, nor has it filed a
consent to removal. Thus, on this basis, the removal is
the court concludes that Electric has failed to demonstrate
that the amount in controversy exceeds $75, 000.00. According
to Electric, because its “coverage is excess over the
Auto-Owners $100, 000.00 policy limits, it will take $125,
000.00 in damages to reach Electric Insurance's
coverage.” (Doc. # 13 at 5-6). In Roe v. Michelin
N. Am., Inc., the Eleventh Circuit held that, when a
case is removed on the basis of an initial complaint that
does not plead a specific amount of damages, the removing
defendant is required to show by a preponderance of the
evidence that more likely than not the amount in controversy
exceeds the jurisdictional minimum. 613 F.3d 1058, 1061 (11th
Cir. 2010); see also Friedman v. New York Life Ins.
Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (citing
Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281
n.5 (11th Cir. 2001)) (same); Tapscott, 77 F.3d at
1356-57. Moreover, it is axiomatic that, on a motion to
remand, all questions or doubts as to subject matter
jurisdiction are to be resolved in favor of returning the
matter to state court. See Burns, 31 F.3d at 1095.
complaint, Cox alleges that on June 22, 2011, in Autauga
County, Alabama, he was involved in a car accident when the
underinsured motorist, Carey Smith, “was not paying
attention to the road, was not driving reasonably for the
road conditions, failed to stop, and collided with the rear
of the vehicle driven by Plaintiff Cox.” (Doc. # 1, Ex.
1 at 3, ¶ 9). On the face of his complaint, Cox seeks
compensatory and punitive damages. (Id. at 4, ¶
22). In their notice of removal, Electric provided a copy of
the insurance declaration page indicating that Auto Owners
policy limits for an accident was $100, 000.00. (Doc. # 1, Ex
D). However, there is no description in the complaint of the
severity of injuries to Cox or damage to his vehicle.
Electric presents no evidence of the severity of Cox's
injuries or property damages. In its motion to remand, Cox
indicates that in May 2014, his total amount of billed
medical expenses was $46, 401.78. (Doc. # 10 at 4) but also
asserts that “the total amount of medical damages in
this case is reduced by third-party payments made by
BlueCross BlueShield of Alabama; and recovery in this matter
will be offset by the $25, 000.00 policy-limits settlement
obtained from the tortfeasor.” (Id.)
from the complaint are any allegations from which one could
draw any reasonable inference regarding the extent of
damages. For example, it is not possible to discern from the
complaint the extent of damages to Cox's vehicle.
Similarly, the extent of Cox's physical injuries is left
entirely to speculation. It is impossible to determine from
the face of the complaint exactly what those damages
Electric urges the court to consider the limits of the
underlying insurance policies, in determining the amount in
controversy, it is “the value of the claim, rather than
the insurance policy's limits, ” that determines
the amount in controversy. Albrite Cleaning Servs., Inc.
v. Travelers Indem. Co. of Am., 2016 WL 4371578, *2
(S.D. Fl. Jan. 27, 2016) (Case No.
15-81559-CIV-COHN/SELTZER); Martins v. Empire Indem. Ins.
Co., 2008 WL 783762, *2 (S.D. Fla. Mar. 21, 2008) (No.
08-60004-CIV) (collecting cases). “Where, as here,
there is no controversy involving the face value of the
policy, . . . it would make no sense to consider the
policy's face value to be the amount in
controversy.” Friedman , 410 F.3d at1357. In
short, there is no evidence before the court from which it
can determine the nature and extent of Cox's damages.
Electric urges the court to consider that Cox's
“refusal to stipulate” that he would not seek
more than $75, 000.00 in damages as support for its position
that his damages “more than likely” exceeds the
jurisdictional requirement. In Williams v. Best Buy Co.,
Inc., the Court recognized that “[t]here are
several reasons why a plaintiff would not so stipulate, and a
refusal to stipulate standing alone does not satisfy” a
defendant's burden. 269 F.3d 1316, 1320 (11th Cir. 2001).
The mere fact that Cox has declined to ...