United States District Court, M.D. Alabama, Northern Division
DORIS WHEAT THORNTON, by and through her daughter and next of friend VERA THORNTON HAWTHORNE Plaintiff,
UNITED AMERICAN INSURANCE CO., Defendant.
MEMORANDUM OPINION AND ORDER
C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the Plaintiff's Motion to Remand.
(Doc. 5.) For the reasons stated herein, this motion is due
to be granted.
Plaintiff asserts that Defendant United American Insurance
Company (“United” or “Defendant”)
refused to pay invoices for November and December of 2016
under a long-term care policy, which resulted in an
outstanding balance of $5, 563.56 owed to the Plaintiff's
long-term care facility. On or about January 11, 2018, the
Plaintiff filed suit in Montgomery County Circuit Court
alleging breach of contract, normal bad faith, and abnormal
bad faith. (Doc. 1-1, at 3). The Plaintiff sought
compensatory and punitive damages.
commenced in the state court action. The state court file
ballooned to over 1, 200 pages, and it appears that the
Defendant produced over 1, 500 documents in discovery. The
depositions of six United employees were scheduled in Texas
on December 11 and 12, 2018. Prior to the depositions, United
made a settlement offer of $12, 500. (See Doc. 6-3).
In response to that offer, Plaintiff's counsel sent a
one-page demand for $100, 000 to settle the case. The
Plaintiff characterized this demand as
“non-negotiable” and specified that the offer
would expire at noon the next day. The Defendant then removed
the case to federal court based on diversity jurisdiction,
claiming that this settlement demand letter established that
the amount in controversy exceeded $75, 000. (Doc. 1).
review of the state court file reveals that the Plaintiff
“claims damages for the benefits denied under the
subject policy, plus interest and costs of litigation. In
addition, mental anguish and punitive damages are
claimed.” (Doc. 1-5, at 178). In a motion to compel
filed in state court, the Plaintiff asserts that she seeks
“pattern and practice evidence” to demonstrate
“motive, plan, scheme, design and intent” for the
purpose of proving punitive damages. (Doc. 1-4, at 57). The
Plaintiff further complains that she “has a good faith
belief Defendant engaged in fraud…and further believes
that Defendant engaged in substantially similar frauds in
other states . . ..” (Doc. 1-4, at 123).
Defendant argues that the Plaintiff's
“non-negotiable demand”, made “by
experienced counsel after the completion of substantial
discovery” unambiguously establishes that at least $75,
000 is in dispute. (Doc. 9, at 1; 5). The Plaintiff, however,
characterizes her settlement demand as “puffing and
posturing” that does not establish the requisite amount
in controversy. (Doc. 6, at 3).
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994). Accordingly, they only have the power to hear
cases over which the Constitution or Congress has given them
authority. See Kokkonen, 511 U.S. at 377. Congress
has empowered the federal courts to hear cases removed by a
defendant from state to federal court if the plaintiff could
have brought the claims in federal court originally.
See 28 U.S.C. § 1441(a); Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987). Federal courts
may exercise diversity jurisdiction over civil actions where
the amount in controversy exceeds $75, 000 exclusive of
interest and costs, and the action is between citizens of
different states. 28 U.S.C. § 1332(a)(1). However,
“removal statutes are construed narrowly; where
plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of remand.”
Burns, 31 F.3d at 1095.
Removal under 28 U.S.C. § 1446(b)(3)
Defendant removed this action under the subsection of 28
U.S.C. § 1446 that establishes a thirty-day removal
period after which the defendant receives a document
“from which it may first be ascertained that the case
is one which is or has become removable.” §
1446(b)(3). The procedure for removal under § 1446(b)(3)
is governed by Lowery v. Alabama Power Co., 483 F.3d
1184 (11th Cir. 2007), overruled on other grounds by
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752
(11th Cir. 2010); see also Sallee v. Ford Motor Co.,
2014 WL 1492874, at *4-5 (M.D. Ala. 2014) (relying on
Lowery to explain the procedure governing §
1446(b)(3) removals); Erby v. Pilgrim's Pride,
2016 WL 3548792, at *7 (N.D. Ala. 2016) (finding that
Lowery remains “the binding framework for
removing under § 1446(b)(3)”); Simpson v.
Primerica Life Ins. Co., 2017 WL 2857699, at *4 (M.D.
Ala. 2017), report and recommendation adopted, 2017 WL
2838078 (M.D. Ala. 2017) (finding that because the case was
removed for a second time, the defendants must unambiguously
establish the amount in controversy).
the plaintiff timely challenges the propriety of removal
under § 1446(b)(3), as Plaintiff has done here, a
defendant must “unambiguously establish federal
jurisdiction.” Lowery, 483 F.3d at 1213;
see also Advantage Med. Elecs, LLC v. Mid-Continent Cas.
Co., No. 14-0045, 2014 WL 1764483, at *5 (S.D. Ala.
2014) (The “Lowery's
unambiguously establish burden replaces [the
preponderance-of-the-evidence] burden when a plaintiff
challenges the procedural propriety of a removal under
[§ 1446(b)(3) ] by . . . timely moving to remand under
§ 1447(c)” (citation and internal quotation marks
omitted)). To accomplish this in cases removed based on
diversity jurisdiction, the “jurisdictional
amount” must be “stated clearly on the face of
the documents before the court, or readily deducible from
them.” Lowery, 483 F.3d at 1211.