United States District Court, S.D. Alabama, Southern Division
HERCILIA H. GROW, Plaintiff,
v.
TRANSAMERICA LIFE INSURANCE COMPANY, Defendant.
ORDER
KRISTI
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
This
action is before the Court on the Objection to
Magistrate's Remand Order filed by Defendant Transamerica
Life Insurance Company (doc. 15) and the Response to
Objection filed by Plaintiff Hercilia H. Grow (doc. 19). Upon
consideration, and for the reasons set forth herein,
Defendant's objections are OVERRULED and the Order of
remand to the Circuit Court of Mobile County, Alabama (doc.
13), is AFFIRMED and ADOPTED as the opinion of this Court.
This
action was initially assigned to the Magistrate Judge
specially designated to exercise jurisdiction for all
proceedings “[u]pon consent of the parties”. 28
U.S.C. § 636(c). Notice of Assignment was sent to the
parties (Doc. 3). After the Magistrate Judge entered an order
remanding the action (doc. 13), Defendant filed the pending
Objection (doc. 15). Defendant argues that it did not
implicitly consent to the jurisdiction of the Magistrate
Judge and therefore, this Court should conduct a de novo
review of the case-dispositive decision. Plaintiff filed her
response to the Objection and argues that Defendant consented
to the Magistrate Judge's jurisdiction. Plaintiff points
out that by litigating before the Magistrate Judge without
objecting to jurisdiction and by failing to argue that the
proposed order submitted to the Magistrate Judge should have
been a report and recommendation, Defendant implicitly
consented to jurisdiction (Doc. 19). Plaintiff also asserts
that Defendant “explicitly recognized” that the
Magistrate Judge's order would be a final order from
which Defendant could appeal (Doc. 19, p. 2, citing Doc. 12,
p. 3 (“. . . counsel for defendant Transamerica
respectfully requests that the Court, in granting any Order
of remand, issue an accompanying stay to allow a reasonable
time for defendant to appeal…”). Plaintiff
points out that only after Defendant “was dissatisfied
with the Magistrate Judge's Order” that it
“expressed this new procedural objection” (Doc.
19, p. 3). Arguably, Defendant implicitly consented to the
jurisdiction of the Magistrate Judge. Defendant did not
request reassignment until after the order granting
Plaintiff's motion to remand was entered. See Roell
v. Withrow, 538 U.S. 580, 123 S.Ct. 1696, 1703 (2003)
(“Inferring consent in these circumstances thus checks
the risk of gamesmanship by depriving parties of the luxury
of waiting for the outcome before denying the magistrate
judge's authority.”). However, since jurisdiction
over a case-dispositive motion[1] is at issue, the Court assumes
that consent has not been given and thus, has conducted a de
novo review of the record pursuant to 28 U.S.C. §
636(b)(1)(B) and Fed.R.Civ.P. 72(b)(3).[2] See Bismark
v. Fisher, 213 Fed.Appx. 892, 895-96 (11th Cir. 2007)
(“[T]he bedrock constitutional and jurisdictional
considerations at stake demand that courts not be cavalier in
finding a waiver of a litigant's Article III
rights.”) (finding that the parties had expressly
consented to magistrate judge jurisdiction).
Upon de
novo review, the Court finds that Defendant failed to meet
its burden to show that the amount in controversy exceeds the
jurisdictional amount. Specifically, Defendant asserts that
the only evidence in the record is the Declaration of its
Senior Actuary wherein he concludes that Plaintiff at age 86,
has a 66.2 % chance of living four more years, to age 90, and
would collect benefits in excess of the jurisdictional limit.
Defendant argues that requiring it to “produce specific
medical records showing Plaintiff's condition and other
evidence at this stage in the proceedings” is a burden
beyond that necessary to make the initial showing for
jurisdiction, and approaches the evidence expected at trial
(doc. 15, p. 6).
The
Actuary states that based upon review of Plaintiff's
claim documents, “it does not appear” that she
“has a life-threatening medical condition” and
that “it appears that since” staying at Atria
Regency “she has not received skilled nursing care on a
regular basis[.]” (doc. 9-1, Declaration, p. 2). Based
on the above assumptions and the hypothetical life expectancy
of an 86-year old female in the United States, the Actuary
determined that Plaintiff would live long enough to “be
entitled to Facility Benefits in the amount of $81,
760.00” (Id., p. 4).
Notwithstanding
the Actuary's review of the claim documents and his
opinion regarding what appears therein, there is no evidence
that Plaintiff, in her current physical and mental condition,
[3]
would live the statistically-expected life span of a
hypothetical woman her same age. Thus, relying upon this
statistical life expectancy without any evidence of its
application to the facts of this case (i.e.,
Plaintiff's specific health issues) is equivalent to
citing similar tort cases where recoveries exceeded the
jurisdictional amount as evidence of the amount in
controversy. Lowery v. Alabama Power Co., 483 F.3d
1184, 1221 (11th Cir. 2007) (“First, we note that this
evidence regarding the value of other tort claims was not
received from the plaintiffs, but rather was gathered from
outside sources. As such, the evidence is not of the sort
contemplated by § 1446(b). Even if the defendants had
received the evidence of other suits from the plaintiffs, we
question whether such general evidence is ever of much use in
establishing the value of claims in any one particular suit.
Looking only to this evidence and the complaint, the facts
regarding other cases tell us nothing about the value of the
claims in this lawsuit. Even were we to look to evidence
beyond that contained within the notice of removal, in the
present dispute-with a record bereft of detail-we cannot
possibly ascertain how similar the current action is to those
the defendants cite. Absent specific detail about the present
action, the supplement in no way clarifies the aggregate
value of the claims here. The defendants, therefore, have
failed to meet their burden.”).
---------
Notes:
[1] At present, the Eleventh Circuit has
not clearly held that a motion to remand is a dispositive
motion. However, many courts of appeals have reached that
conclusion. Davidson v. Georgia-Pac., L.L.C., 819
F.3d 758, 763 (5th Cir. 2016) (agreeing with the conclusions
of five sister circuits that “[a]though motions to
remand are not” in the statutory list of dispositive
motions, “every court of appeals to consider the
question has held that they should be treated as dispositive
matters in which only the district court may enter an
order.”) (citing Flam v. Flam, 788 F.3d 1043,
1046-47 (9th Cir.2015); Williams v. Beemiller, Inc.,
527 F.3d 259, 266 (2d Cir.2008); Vogel v. U.S. Office
Prods. Co., 258 F.3d 509, 517 (6th Cir.2001); First
Union Mortg. Corp. v. Smith, 229 F.3d 992, 995-96 (10th
Cir.2000); In re U.S. Healthcare, 159 F.3d 142,
145-46 (3d Cir.1998)); see also Davison v. Lefever,
2013 WL 4012654, at *1, n.1 (S.D. Ala. Aug. 5, 2013)
(“In this Court, motions to remand are considered
case-dispositive pursuant to 28 U.S.C. § 636(b)(1) and
Rule 72.).
[2] “(b) Dispositive Motions
… (3) Resolving Objections. The district
judge must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72 (b)(3).
[3]
Scottsdale Ins. Co. v. Calhoun
Hunting Club & Lounge, 2018 WL 6788045, at *2 (M.D.
Ala. Dec. 26, 2018) (“When a plaintiff seeks injunctive
or declaratory relief, the amount in controversy is the
monetary value of the object of the litigation from the
plaintiff's perspective.”) (quoting Cohen v.
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