United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This case arises out of a car crash. Pending before the Court are a Motion to Dismiss (ECF No. 4) and a Motion to Remand (ECF No. 9). For the reasons given herein, the Court denies the motions.
I. FACTS AND PROCEDURAL HISTORY
On or about April 7, 2009, Plaintiff Tsegaye Doelamo's vehicle was struck in the side by a vehicle driven by Defendant Schell Karl-Heinz in Las Vegas, Nevada, causing Plaintiff "great pain of body and mind, and mental stress and anxiety, all o[r] some of which conditions may be permanent and disabling...." (Compl. ¶¶ 5-6, Mar. 17, 2011, ECF No. 1-1). Plaintiff is a citizen of Nevada, and Defendant is a citizen of Austria. ( Id. ¶¶ 1-2).
Plaintiff sued Defendant in state court for negligence, seeking damages for medical care, lost wages, and attorney's fees. ( See id. ¶¶ 6-8). Defendant removed. Plaintiff has moved to remand for failure to satisfy the amount-in-controversy requirement, and Defendant has moved to dismiss for improper service of process or failure to prosecute.
A. Amount in Controversy
Assuming complete diversity between the parties, federal courts have jurisdiction over state claw claims where the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332(a). Where a complaint specifies no precise amount of damages, a removing defendant bears the burden of showing by a preponderance of the evidence that the amount in controversy exceeds $75, 000. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).
Plaintiff simply asserts that he seeks no more than $75, 000, and that therefore the Court must remand. But a court may not simply take a plaintiff's word for it. A court must examine the complaint and the available evidence and determine as an objective matter whether a defendant has shown the amount in controversy by a preponderance of the evidence. In response, Defendant-who notes that his name is Karl-Heinz Schell, not Schell Karl-Heinz-explains that Plaintiff has already claimed approximately $22, 000 in past medical damages, and he argues that it is more likely than not that if Plaintiff is successful on his claims for lost wages, future medical damages for his "permanent" condition(s), past and future pain and suffering, and attorney's fees, he will recover more than $75, 000 total in the case. The Court agrees. Defendant has attached a copy of the list of past medical bills provided to him by Plaintiff. In the Court's experience, a personal injury claim including $22, 000 in past medical bills will normally include a plea to a jury for several times this amount in future medical bills, particularly where one alleges a permanent condition related to the injury. The Court can conclude this without even considering pain and suffering, lost wages, or attorney's fees. Considering those measures of damages and fees, as well, it is nearly certain that Plaintiff in reality seeks more than $75, 000. The Court has little doubt that Plaintiff will ask the jury to award him more than $75, 000, whether in this Court or in state court. Finally, Defendant notes that Plaintiff has in fact demanded $150, 000 to settle the case.
B. Service of Process
Defendant notes that this is the third case for the same accident Plaintiff has filed against Defendant, and that Plaintiff voluntarily dismissed the other two actions without prejudice before serving Defendant. But unless Defendant wishes to invoke a statute of limitations, which he does not appear to do at this time, the Court just isn't concerned with past cases dismissed without prejudice before service. The only question here is whether Defendant has been properly served in the present case.
Defendant notes that Plaintiff filed the present case on March 17, 2011 (which appears to be within the two-year statute of limitations). Defendant admits that the state court granted Plaintiff many extensions to serve Defendant in the present case (which is not surprising if Defendant lives in Austria), and that the disputed service was effected in a timely manner under the state court's extensions (assuming the method of service alleged was proper, which Defendant disputes). A large part of Defendant's complaint is with the lenience of the state court, but this Court will not undermine the state trial court's discretion in granting extensions by counting those extensions against Plaintiff in a failure-to-prosecute analysis.
Finally, the Court will examine whether service under Nevada Revised Statutes ("NRS") section 14.070 is constitutional. That statute provides that a person who operates a motor vehicle on Nevada's roads thereby gives implies consent for the Director of the Department of Motor Vehicles ("DMV") to accept service of process on his behalf as to any matter arising out of such activity, including for nonresident motorists who have left the state or who cannot be found within the state after an accident. See Nev. Rev. Stat. § 14.070. The relevant portion of the statute reads:
Service of process must be made by leaving a copy of the process with a fee of $5 in the hands of the Director of the Department of Motor Vehicles or in the office of the Director, and the service shall be deemed sufficient upon the operator if notice of service and a copy of the process is sent by registered or certified mail by the plaintiff to the defendant at the address supplied by the defendant in the defendant's accident report, if any, and if not, at the best address available to the plaintiff, and a return receipt signed by the defendant or a return of the United States Postal Service stating that the defendant refused to accept delivery or could not be located, or that the address was insufficient, and the plaintiff's affidavit of compliance therewith are attached to the original process and returned and filed in the action in which it was issued. Personal service of notice and a copy of the process upon the defendant, wherever found outside of this state, by any person ...