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Pereza v. Progressive Direct Insurance Co.

United States District Court, D. Nevada

April 8, 2015

TYLOR PEREZA, Plaintiff(s),
v.
PROGRESSIVE DIRECT INSURANCE CO., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff Tylor Pereza's (hereinafter "plaintiff") motion to remand to state court. (Doc. # 8). Defendant Progressive Direct Insurance Co. (hereinafter "Progressive") filed a response, (doc. # 11), and plaintiff filed a reply, (doc. # 12).

I. Background

This case arises out of an automobile accident that occurred on October 10, 2013. (Doc. # 11). Plaintiff Pereza was struck from behind by non-party tortfeasor Jessica Andrade. (Doc. # 11). As a result of the accident, plaintiff asserts that he has incurred $30, 084.31 in medical expenses. (Doc. # 12).

Prior to the accident, plaintiff entered into an insurance contract with Progressive, which included underinsured motorist (hereinafter "UIM") coverage of $100, 000 per accident. (Doc. # 11). At the time of the accident, Ms. Andrade carried automobile liability insurance limits of $15, 000 per person and $30, 000 per accident. (Doc. # 11).

Prior to this litigation, Pereza and Progressive engaged in settlement negotiations, wherein Progressive made an offer in UIM benefits to Pereza.[1] (Doc. # 12, exhibit 1). Plaintiff subsequently filed this lawsuit. In his complaint, plaintiff asserts four causes of action: (1) breach of contract, (2) fraud, (3) breach of covenant of good faith and fair dealing, and (4) violations of the Nevada Unfair Claims Practices Act. ( See doc. # 8, exhibit 1). The complaint states that while the exact amount of damages will be determined according to proof, the amount his losses will be "in excess of $10, 000." ( See doc. # 8, exhibit 1).

Furthermore, the complaint seeks consequential damages, compensatory damages (including economic and non-economic damages for emotional distress, humiliation, and mental anguish), punitive damages, and attorneys' fees. ( See doc. # 8, exhibit 1).

II. Legal Standard

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).

Removal of a case to a United States district court may be challenged by motion. 28 U.S.C. § 1441(c). A federal court must remand a matter if there is a lack of jurisdiction. Id. Removal statutes are construed restrictively and in favor of remanding a case to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

For a district court to have diversity jurisdiction under 28 U.S.C. § 1332, the parties must be completely diverse and the amount in controversy must exceed $75, 000.00. See 28 U.S.C. § 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

On a motion to remand, the removing defendant faces a presumption against removal and bears the burden of establishing that removal is proper by a preponderance of the evidence. Gaus, 980 F.2d at 566-67; Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996). Therefore, when jurisdiction is based on diversity jurisdiction, the removing defendant must show that it is "more likely than not" that the amount in controversy exceeds the statutory amount required. Sanchez, 102 F.3d at 404.

"Generally, the amount in controversy is determined from the face of the pleadings." Garcia v. Dawahare, No. 2:06-CV-00695-KJD-LRL, 2006 WL 2583745, at *1 (D. Nev. Sept. 6, 2006) (citing Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000); Singer v. State Farm Mut. Auto. Ins., Co., 116 F.3d 373, 375 (9th Cir. 1997)). However, under the Nevada Rules of Civil Procedure, a claimant is prohibited from pleading damages in a specific amount over $10, 000, and may plead only for damages "in excess of $10, 000." N.R.C.P. 8(a).

In measuring the amount in controversy, a court must assume that the allegations of the complaint are true and that a jury will return a verdict for the plaintiff on all claims made in the complaint. Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal. 2002); ...


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