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Cormier v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. Nevada

July 15, 2014

SHERRY L. CORMIER, Plaintiff(s),
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff Sherry Cormier's motion to remand. (Doc. # 8). Defendant State Farm Mutual Automobile Insurance Company ("State Farm") has filed a response (doc. # 10), and plaintiff filed a reply. (Doc. # 13).

I. Background

On November 26, 2012, an automobile operated by Rexalynn Walberg struck plaintiff's vehicle from behind while plaintiff waited at a traffic signal. (Doc. # 10 at 2). From November 26, 2012, to August 1, 2013, plaintiff visited Sunrise Hospital Medical Center, Akers Chiropractic, Nevada Comprehensive Pain Center, Las Vegas Radiology, Desert Radiology, and Desert Orthopedic Center for medical care. (Doc. # 10-1 at 3-6). Though varying diagnoses were made during the course of her treatment, plaintiff's medical issues primarily involve damage to the spine and both knees. Id. at 3-6.

On October 29, 2013, plaintiff's counsel sent correspondence to plaintiff's insurer, State Farm, requesting a policy settlement of $50, 000. Id. at 7. Plaintiff's complaint indicates State Farm has not accepted this request. (Doc. 1-1 at 4). Plaintiff alleges breach of contract, violations of N.R.S. 686A.310, and breach of the covenant of good faith and fair dealing. (Doc. # 1-1 at 4-6). Defendant filed for removal (doc. # 1), and plaintiff moved to remand. (Doc. # 8).

II. Legal Standard

An action filed in state court may be removed to federal court if the federal court would have had original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). Subject matter jurisdiction exists over suits between citizens of different states where the amount in controversy exceeds the sum or value of $75, 000. 28 U.S.C. § 1332(a). The removal statutes are construed restrictively, and doubts regarding the viability of removal are resolved in favor of remanding the case to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

Where the complaint does not establish the amount in controversy, "the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds [$75, 000]." Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996); Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007).

III. Discussion

The only question in the present motion is whether the amount in controversy exceeds the $75, 000 threshold established in 28 U.S.C. § 1332. (Doc. # 8 at 4).

On its face, the complaint does not establish the amount in controversy to be greater than $75, 000 because plaintiff asks for a judgment of "[g]eneral damages in excess of ten thousand dollars" in addition to unquantified special and punitive damages, prejudgment interest, attorney's fees, and other relief. (Doc. # 1-1 at 7-8).

Therefore, defendant must satisfy the amount-in-controversy requirement by a preponderance of the evidence. Sanchez, 102 F.3d at 404. Significantly in the present case, "[c]onclusory allegations as to the amount in controversy are insufficient." Matheson v. Progressive Specialty Ins. Co. 319 F.3d 1089, 1090-91 (9th Cir. 2003).

A. Lost Wages, General Damages, and Attorney Fees

Defendant lacks evidence supporting its estimations of potential damages for lost wages, general damages, and attorney fees. (Doc. # 10 at 6-9). Thus, defendant's proffered estimations are conclusory and cannot be considered for the ...


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