Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carrie Stiglich v. Bankers Life and Casualty Company

November 7, 2011

CARRIE STIGLICH PLAINTIFF,
v.
BANKERS LIFE AND CASUALTY COMPANY, DEFENDANT.



The opinion of the court was delivered by: John J. O'sullivan United States Magistrate Judge

ORDER

THIS MATTER is before the Court on the Plaintiff's Motion for Remand and Memorandum of Law in Support Thereof (DE# 11, 7/12/11) and Bankers Life and Casualty Company's Motion for Transfer of Venue and Incorporated Memorandum of Law in Support (DE10, 7/11/11). The parties consented to have the undersigned decide motions for remand and all pre-trial motions (except, in pertinent part, motions to dismiss, motions for judgment on the pleadings, and motions for summary judgment). See Joint Consent to Jurisdiction by a United States Magistrate Judge (DE# 13, 8/4/11). Thereafter, this matter was referred to the undersigned by the Honorable Adalberto Jordan in accordance with 28 U.S.C. § 636(b). See Order Referring Motions to Magistrate Judge O'Sullivan (DE# 19, 8/26/11). For the reasons discussed below, it is

ORDERED AND ADJUDGED that the Plaintiff's Motion for Remand and Memorandum of Law in Support Thereof (DE# 11, 7/12/11) is GRANTED for lack of federal jurisdiction and the Clerk of Court shall dismiss this action and return the cause to the appropriate state court for all further proceedings. It is further

ORDERED AND ADJUDGED that Bankers Life and Casualty Company's Motion for Transfer of Venue and Incorporated Memorandum of Law in Support (DE10, 7/11/11) is DENIED as moot.

BACKGROUND

On or about May 11, 2011, the plaintiff filed an action in state court against the defendant for breach of insurance contract. See Complaint for Damages attached to the Notice of Removal (DE# 1-2, 6/13/11). On June 13, 2011, the defendant filed a timely notice of removal based on diversity jurisdiction and the case was removed to this Court. See Notice of Removal (DE# 1).

On July 11, 2011, the defendant filed a motion to transfer venue that sought to transfer the action to the Middle District of Florida. The plaintiff did not file any response.

On July 17, 2011, the plaintiff filed the instant motion seeking to remand this case to state court. See Plaintiff's Motion for Remand and Memorandum of Law in Support Thereof (DE# 11, 7/12/11). The defendant filed its response in opposition on 7/26/11. See Banker's Life and Casualty Company's Response in Opposition to Plaintiff's Motion to Remand (DE# 12, 7/26/11). The plaintiff did not file a reply, but filed Plaintiff's Notice of Filing Supplemental Authority in Support of Plaintiff's Pending Motion for Remand. (DE# 15, 8/25/11).

ANALYSIS

The plaintiff seeks remand on the ground that the minimum amount in controversy requirement for diversity jurisdiction (i.e. $75,000) is not met, the removal is improper and the case should be remanded to state court. The defendant concedes that removal is based on diversity of citizenship jurisdiction. The defendant argues that the amount in controversy is met because the Policy Schedule reflects that the "plaintiff would be entitled to recover up to the remaining balance of the maximum benefit to be paid during any one period of expense under the Policy - $71,233." Response at 4 (DE# 12, 7/26/11). The defendant further contends that the attorneys fees sought by the plaintiff plus the balance of the Policy would "clearly exceed[ ] $75,000 ...." Id. at 4-5 (DE# 12, 7/26/11).

Federal jurisdiction based on diversity of citizenship exists where there is both complete diversity of citizenship and an amount in controversy exceeding $75,000.00. See 28 U.S.C. § 1332. "A court's analysis of the amount-in-controversy requirement focuses on how much is in controversy at the time of removal, not later." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010). In its response which cites Pretka, the defendant acknowledges that the amount in controversy is measured at the time of removal. Response at 2 (DE# 12, 7/26/11). The party seeking removal has the burden to prove by a preponderance of the evidence that federal jurisdiction exists. Leonard v. Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002). Although the removing party bears the burden of proving both diversity of citizenship and the amount in controversy, this Court is required to examine proof of the amount in controversy from the perspective of the plaintiff and not from the perspective of the defendant. Ericsson GE Mobile Comm., Inc. v. Motorola Comm. & Elec., Inc., 120 F.3d 216, 219 (11th Cir. 1997) (holding that the Eleventh Circuit has adopted the plaintiff-viewpoint rule in determining amount in controversy); cf. Roe v. Michelin North America, Inc., 613 F.3d 1058, 1063 (11th Cir. 2010) (explaining that the Eleventh Circuit "ha[s] found no case in any other circuit that purports to prohibit a district court from employing its judicial experience or common sense in discerning whether the allegations in a complaint [, which lacks a specified damage request,] facially establish the jurisdictionally required amount in controversy.").

The plaintiff's right to choose his forum carries more weight than a defendant's right to remove. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) Burns, 31 F.3d at 1095. "Defendant's right to remove and plaintiff's right to choose his forum are not on equal footing; ... removal statutes are construed narrowly; ... uncertainties are resolved in favor of remand." Id. (citations omitted). The Eleventh Circuit recognizes that federal courts are directed to construe removal statues strictly and to resolve all doubts about jurisdiction in favor of remand to state court. Univ. of S. Ala. v. Am. Tobacco, 168 F.3d 405, 411 (11th Cir. 1999)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)).

1. Diversity of Citizenship

In the instant case, it is undisputed that the first requirement for jurisdiction is met. Diversity exists between the parties because the plaintiff is a Florida resident and the defendant is an Illinois corporation. See Notice of Removal (DE# 1, 6/13/11). The only question remaining before the Court is whether the defendant has met its burden in establishing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.