United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is a Motion to Remand filed by Plaintiff
Sharon Egbert. Doc. 8. Pursuant to 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73, the parties have
consented to the jurisdiction of a United States Magistrate
Judge. Docs. 13 & 14. After careful consideration of the
parties' submissions and the applicable law, for reasons
to be discussed, the Motion to Remand is due to be DENIED.
FACTS AND PROCEDURAL BACKGROUND
alleges that she insured her home and its contents against
loss by fire and other perils with Defendant Auto Club Family
Insurance Company (“Auto Club”). Egbert's
home was wholly destroyed or damaged by fire in September
2017. She alleges that Auto Club has refused to pay on her
claim for insurance. Doc. 2-1. She seeks compensatory damages
for the loss to her dwelling home and contents, compensatory
damages for mental anguish and emotional distress, and
compensatory and punitive damages for Auto Club's bad
faith refusal to pay the claim.
Club has presented an affidavit of its investigator, David
Seymour, who states that Auto Club retained, with
Egbert's permission, a content management and inventory
company called CodeBlue. Doc. 2-4. CodeBlue assisted Egbert
in making an inventory of the items of personal property that
Egbert claimed to have been damaged or destroyed by the fire.
Doc. 2-4 at 2. CodeBlue prepared a Content Valuation Summary
listing the items it deemed to be non-salvageable and the
replacement cost of each item. The total estimated
replacement cost of these items is $291, 068.53. Doc. 2-4 at
STANDARD OF REVIEW
courts are courts of limited jurisdiction. See Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(1994); Wymbs v. Repub. St. Exec. Comm., 719 F.2d
1072, 1076 (11th Cir. 1983), cert. denied, 465 U.S.
1103 (1984). Federal courts therefore only have the power to
hear cases that they have been authorized to hear by the
Constitution or the Congress of the United States. See
Kokkonen, 511 U.S. at 377. Because federal jurisdiction
is limited, the Eleventh Circuit favors remand of removed
cases where federal jurisdiction is not clear. See
Burns, 31 F.3d at 1095.
motion, Egbert does not dispute that the parties are
completely diverse, but instead contends that Auto Club has
not demonstrated that the requisite amount is in controversy.
Egbert initially advanced the argument that, under Lowery
v. Alabama Power Company, 483 F.3d 1184 (11th Cir.
2007), this court may consider only the removing documents.
Auto Club, by contrast, has relied on Pretka v. Kolter
City Plaza II, Incorporated, 608 F.3d 744, 752 (11th
Cir. 2010), to support this court's consideration of
other evidence, pointing out that it removed the case within
thirty days of its receipt of the complaint.
this case was removed within thirty days of the service of
the summons and complaint on Auto Club, see 28
U.S.C. § 1446(b), the standards enunciated in
Pretka govern. In Pretka, the Eleventh
Circuit held that, as to removals based on the first
paragraph of § 1446(b), no limitations exist as to the
evidence a federal court may consider when the removal is
timely. See Pretka, 608 F.3d at 768 (rejecting dicta
in Lowery that a removal under the first paragraph
of § 1446(b) must be based on a document received from
the plaintiff). Because the instant case was removed under
paragraph one of § 1446(b), “the evidence the
defendant may use to establish the jurisdictional facts is
not limited to that which it received from the plaintiff or
the court.” Id.
resolved the question of what evidence the court may
consider, this analysis turns to the question of what the
evidence before the court proves. Auto Club argues that it
has presented sufficient proof that more than $75, 000 is in
controversy in the form of the affidavit of its employee,
David Seymour, who stated that CodeBlue estimated the
replacement cost of Egbert's items as $291, 068.53. Doc.
2-4. Auto Club also points out that Egbert's claims in
this case include not only the personal property lost or
damaged, but also a loss to her residence, which she alleges
was wholly destroyed or damaged by the fire; compensatory
damages for mental anguish and emotional distress; and
compensatory and punitive damages for bad faith refusal to
pay. Doc. 2-1.
position is that even under the Pretka standard Auto
Club has not established the requisite amount in controversy
because its evidence relies on speculation. Specifically,
Egbert notes that Auto Club does not provide an appraisal of
the value of the home, but instead relies on an inventory of
damaged property even though some of these items may not be
covered under the policy at issue. The amount in controversy
inquiry, however, does not require proof of what a plaintiff
ultimately will recover, but instead turns on the amount that
will be at issue during the case. S. Fla. Wellness, Inc.
v. Allstate Ins. Co., 745 F.3d 1312, 1318 (11th Cir.
2014) (citing McPhail v. Deere & Co., 529 F.3d
947, 956 (10th Cir. 2008) (“The amount in controversy
is not proof of the amount the plaintiff will recover.
Rather, it is an estimate of the amount that will be put at
issue in the course of the litigation.”).
also argues that Auto Club has engaged in speculation by
merely identifying potential damages, and cites to decisions
in which the defendant attempted to establish the requisite
amount in controversy with “a ‘mere listing'
of the category of mental anguish damages as the basis for
removal.” Rachel v. PNC Bank, NA,
2017 WL 1362034, at *7 (S.D. Ala. Apr. 10, 2017), appeal
dismissed, 2017 WL 5667972 (11th Cir. July 11, 2017). In
this case, however, Auto Club has not merely relied on
Egbert's claims for mental anguish or punitive damages,
but has presented affidavit and documentary evidence valuing
one component of the damage which forms the basis of
Egbert's claims. Doc. 2-4. Other district courts sitting
within this circuit have denied remand based on similar
evidence. See JZ Auto Serv., Inc. v. Western Heritage
Ins. Co., 2014 WL 12461366 (S.D. Fla. July 24, 2014);
Hicks v. Am. Modern Ins. Co., 2011 WL 1753504, at *2
(S.D. Ala. May 6, 2011).
example, in JZ Auto Service, 2014 WL 12461366, at
*2, the defendant presented an affidavit in which its
employee averred that the plaintiff's adjuster submitted
a list of allegedly damaged property totaling $82, 480. The
court reasoned that although “the terms of the policy
may limit or reduce the amount of proceeds, if any, Plaintiff
is due under the policy, ” the defendant had met ...