United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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).
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).
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),
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). 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).
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). 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…”).
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)). 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
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.”
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 -
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).
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). “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.
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.
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
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),
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 ...