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Advanced Construction and Renovation, Inc. v. MT. Hawley Insurance Co.

United States District Court, S.D. Florida

February 9, 2018

ADVANCED CONSTRUCTION AND RENOVATION, INC., Plaintiff,
v.
MT. HAWLEY INSURANCE COMPANY, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO REMAND

          MARCIA G. COOKE UNITED STATES DISTRICT JUDGE

         This case arises from a breach of contract claim in which Plaintiff Advanced Construction and Renovation, Inc. (“Plaintiff”) alleges it was a third party beneficiary of an insurance policy that was issued by Defendant Mt. Hawley Insurance Company (“Mt. Hawley” or “Defendant”) to Argov Gavish Properties, LLC. Plaintiff contends Mt. Hawley breached the policy by failing to pay Plaintiff for the total loss it sustained on a property damage claim. Mt. Hawley removed this case from state court, asserting federal diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff challenges Defendant's removal, arguing there is no diversity of citizenship and that Defendant waived its right to remove to federal court.

         Pending is Plaintiffs Motion to Remand to State Court. (ECF No. 7). Defendant has filed its Response to Plaintiffs Motion (ECF No. 10), and Plaintiff has filed its Reply to Defendant's Response (ECF No. 11).[1] I have reviewed the parties' arguments, the record, and the relevant legal authorities. For the reasons that follow, I deny Plaintiffs Motion to Remand.

         I. BACKGROUND

         Mt. Hawley issued a property and casualty insurance policy to Argov Gavish Properties, LLC for the period of October 7, 2014 to October 7, 2015. ECF No. 5-1 at 12, ¶ 3. During this period, Plaintiff occupied the first floor of Argov Gavish Properties, LLC's property as a licensed contractor and as a kitchen and bath distributor. Id. at 12, ¶ 6.

         On or about August 18, 2015, the first floor of Argov Gavish Properties, LLC's property-Plaintiff's premises-sustained damage due to an air conditioning leak. Id. at 12, ¶ 9. As a result, Plaintiff filed an insurance claim with Defendant and Defendant began adjusting the loss. Id. at 12, ¶ 10. On or about June 21, 2016, Plaintiff learned that Rami Argov and/or Argov Gavish Properties, LLC released the insurance claim filed by Plaintiff. Id. at 12, ¶ 12. Plaintiff subsequently commenced this action against Mt. Hawley on April 20, 2017, in the Circuit Court of the Seventeenth Judicial Circuit for Broward County, Florida. Id. at 10-14. Plaintiff asserts Defendant was aware Plaintiff was a third party beneficiary of the Policy, and therefore breached the policy by failing to pay Plaintiff the total loss it sustained. Id. at 13, ¶¶ 15-16. Defendant timely filed its answer and affirmative defenses on May 22, 2017. Id. at 93-96.

         Defendant filed its corrected Notice of Removal to this Court on May 31, 2017. ECF No. 5. Defendant asserts this Court has jurisdiction over this case because it is a matter in which the amount in controversy exceeds $75, 000 and is between citizens of different States. Id. ¶ 7. Defendant establishes that the total amount in controversy exceeds $75, 000. Id. ¶ 11. Defendant further contends that Defendant is a citizen of Illinois while Plaintiff is a citizen of Florida, thus showing complete diversity. Id. ¶¶ 14-16.

         Plaintiff subsequently filed its Motion to Remand to State Court (ECF No. 7). Plaintiff concedes that Defendant has met its burden that the amount in controversy exceeds the jurisdictional requirement. Id. ¶ 2. However, Plaintiff contends that Defendant failed to establish diversity of citizenship, (Id. ¶ 3), and nevertheless waived its right to removal by including a demand for jury trial within its answer and affirmative defenses, (Id. at 4-5).

         II. LEGAL STANDARD

         The burden of establishing federal jurisdiction falls on the party who is attempting to invoke the jurisdiction of the federal court. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Courts should strictly construe the requirements of 28 U.S.C. § 1441 (removal jurisdiction) and remand all cases in which such jurisdiction is doubtful. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Moreover, removal statutes are construed narrowly, and when the plaintiff and defendant clash on the issue of jurisdiction, uncertainties are resolved in favor of remand. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

         III. DISCUSSION

         Plaintiff moves for remand on the basis that Defendant has not met its burden of proving diversity of citizenship. Even if Defendant has adequately shown diversity, Plaintiff maintains Defendant nevertheless waived its right of removal when it demanded a jury trial in its answer and affirmative defenses filed in state court prior to removal.

         A. Diversity of Citizenship

         Plaintiff contends Defendant failed to meet its burden of proving by a preponderance of the evidence diversity of citizenship as ...


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