Glass-Wyble v. Geico Casualty Co.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion to remand under 28 U.S.C. § 1447(c) (Doc. 6) filed by Plaintiff Melanie Glass-Wyble. The assigned District Judge has referred the motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (3/6/2019 electronic reference). Defendant Geico Casualty Company (asserting that it has been misidentified in the complaint as “Geico Insurance Company”) (hereinafter, “Geico”) timely filed a response (Doc. 13) in opposition to the motion, and Glass-Wyble timely filed a reply (Doc. 14), and the motion to remand is now under submission (see Doc. 9).

         Upon consideration, and pursuant to § 636(b)(1)(B)-(C) and Rule 72(b)(1), the undersigned will recommend that the Court grant Glass-Wyble's motion to remand (Doc. 6).

         I. Background

         Glass-Wyble commenced this case on November 27, 2018, by filing a three-count complaint in the Circuit Court of Mobile County, Alabama (see Doc. 1-2 at 2 - 7; Doc. 7 at 3 - 8), ^[1] alleging causes of action arising from a September 8, 2018 automobile accident involving an unknown driver who fled the scene. Counts One and Two of the complaint assert causes of action for negligence and wantonness against fictitious defendants, while Count Three asserts a breach-of-contract claim against Geico for benefits under a policy for uninsured/underinsured motorist insurance, “whereby GEICO would pay all sums which an insured would be legally entitled to recover from [an] uninsured/underinsured motorist.” On February 20, 2019, Geico removed the case to this Court under 28 U.S.C. § 1441(a). (See Doc. 1).^[2] In response to an order of the Court directing Geico to correct certain deficiencies in its allegations of the parties' citizenships (Doc. 10), Geico filed an amended notice of removal (Doc. 11).

         II. Analysis

         Where, as here, a case is removed from state court, “[t]he burden of establishing subject matter jurisdiction falls on the party invoking removal.” Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir. 1999).^[3] Accord, e.g., City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (“The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction.”). Geico alleges diversity of citizenship under 28 U.S.C. § 1332(a) as the sole basis for this Court's original jurisdiction. See 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal…containing a short and plain statement of the grounds for removal…”).

         “Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Thus, a “ ‘party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties.' ” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1225 (11th Cir. 2017) (quoting Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam)). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519 F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading diversity of citizenship is upon the party invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974)).^[4] Diversity jurisdiction also requires that “the matter in controversy exceed[] the sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a); Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 & n.4 (11th Cir. 2010). Glass-Wyble argues only that Geico cannot demonstrate that the requisite amount in controversy is satisfied.^[5]

         The complaint alleges that Glass-Wyble was traveling on Interstate 10 in Mississippi when an unknown driver of a pickup truck rear-ended a vehicle traveling behind Glass-Wyble, causing that vehicle “to be propelled into the rear of [Glass-Wyble]'s vehicle.” (Doc. 7 at 4). According to the complaint, “[a]s a result of the accident, [Glass-Wyble] was made sick, sore, bruised, and contused[, ] suffered injuries about her body, pain from those injuries, and will so suffer in the future.” (Id. at 5). Glass-Wyble describes these as “severe personal injuries to her body…” (Id. at 6 - 7). She also claims that she “has incurred medical bills and expenses, has been forced to undergo painful medical treatment, …will incur future medical bills and expenses[, ] has also suffered severe physical pain and mental anguish related to the injuries she sustained and will suffer future physical pain and mental anguish related to the injuries she sustained.” (Id.).

         No count demands a sum certain. Count One demands “compensatory damages in an amount in excess of the jurisdictional limits of [the Alabama circuit c]ourt, plus interest and costs[, ]” while Count Two contains an otherwise identical demand for “compensatory and punitive damages…” (Doc. 7 at 6 - 7).^[6] Count Three, the only one asserted against Geico, alleges that “[t]here are applicable policies of insurance with GEICO to cover [Glass-Wyble]'s injuries and damages as set forth hereinabove” and “demands judgment…for the amount of insurance under each policy issued by [Geico] and applicable hereto with interest and costs of this action.” (Id. at 7 - 8).

         “Where, as here, the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “What counts is the amount in controversy at the time of removal. It is less a prediction of how much the plaintiffs are ultimately likely to recover, than it is an estimate of how much will be put at issue during the litigation; in other words, the amount is not discounted by the chance that the plaintiffs will lose on the merits.” S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir. 2014) (citation and quotation omitted). “When the complaint does not claim a specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement. If the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed.” Williams, 269 F.3d at 1319. Accord Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).^[7] “A court may rely on evidence put forward by the removing defendant, as well as reasonable inferences and deductions drawn from that evidence, to determine whether the defendant has carried its burden.” S. Fla. Wellness, 745 F.3d at 1315.

         “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly[, ]” and “all doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). Nevertheless, “a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). “[W]hen a removing defendant makes specific factual allegations establishing jurisdiction and can support them (if challenged by the plaintiff or the court) with evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations[, t]hat kind of reasoning is not akin to [impermissible] conjecture, speculation, or star gazing” as to amount in controversy. Id.

         Geico reads Count Three of the complaint as demanding the full $300, 000 limit of Glass-Wyble's uninsured/underinsured motorist insurance policy. (See Doc. 1-5 [Insurance Policy Declarations Page]). However, the undersigned agrees with Glass-Wyble that, considering her complaint as a whole, she is not in fact demanding the full limit, but is instead merely demanding that Geico cover all damages for which the uninsured/underinsured fictitious defendants would be liable for in Counts One and Two. See Doc. 7 at 5 (“At the time of the accident, Defendant, GEICO, had in full force and effect a policy of insurance covering the Plaintiff under Policy #4480881632. Said insurance policy provided uninsured motorist coverage to the Plaintiff in the event she was involved in a collision with an uninsured/underinsured motorist, whereby GEICO would pay all sums which an insured would be legally entitled to recover from said uninsured/underinsured motorist.”), 7 (from Count Three: “There are applicable policies of insurance with GEICO to cover Plaintiff's injuries and damages as set forth hereinabove.”)). Accordingly, the amount in controversy must be ascertained from what Glass-Wyble can reasonably be expected (Matter Not Available).

         Geico also submits a letter dated October 25, 2018, from Glass-Wyble's pain management physician to one of Glass-Wyble's attorneys(Doc. 11 at 9 - 10), ^[8] which provides additional information about the injuries Glass-Wyble sustained in the subject car accident, the treatment she has undergone and will have to undergo as a result of the accident, and the effects of her ...