United States District Court, D. Nevada
ORDER REMANDING TO STATE COURT
P. GORDON UNITED STATES DISTRICT JUDGE
Government Employees Insurance Company (GEICO) removed this
case to federal court on September 18, 2017. ECF No. 1. I
ordered GEICO to show cause why this case should not be
remanded because the amount at issue does not meet this
court's jurisdictional amount. ECF No. 12. In response,
GEICO presents no evidence about the amount in controversy.
Rather, it states that plaintiff Ashley Gugino refused to
stipulate that the case is worth less than $75, 000, and that
I am not bound by the statements in Gugino's complaint
that she has been damaged "in an amount. . . less than
Seventy-Five Thousand Dollars ($75, 000)." ECF No 11.
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
"A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears." Stock West, Inc. v. Confederated Tribes of
the Colville Res., 873 F.2d 1221, 1225 (9th Cir. 1989).
"Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first instance."
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992) (citing Libhart v. Santa Monica Dairy Co., 592
F.2d 1062, 1064 (9th Cir. 1979)). Thus, courts "strictly
construe the removal statute against removal
jurisdiction." Id. "The 'strong
presumption' against removal jurisdiction means that the
defendant always has the burden of establishing that removal
is proper." Id. Remand is required if the court
lacks subject matter jurisdiction. 28 U.S.C. § 1447(c);
see also Aguon-Schulte v. Guam Election Comm'n,
469 F.3d 1236, 1240 (9th Cir. 2006) ("[R]emand may be
ordered either for lack of subject matter jurisdiction or for
'any defect' in the removal procedure.").
cases where a plaintiffs state court complaint does not
specify a particular amount of damages, the removing
defendant bears the burden of establishing, by a
preponderance of the evidence, that the amount in controversy
exceeds [$75, 000]. Under this burden, the defendant must
provide evidence establishing that it is 'more likely
than not' that the amount in controversy exceeds that
amount." Sanchez v. Monumental Life Ins. Co.,
102 F.3d 398, 404 (9th Cir. 1996). Broad allegations that the
jurisdictional amount is met, "although attempting to
recite some magical incantation, neither overcome[ ] the
strong presumption against removal jurisdiction, nor
satisf[y][the defendant's burden of setting forth, in the
removal petition itself, the underlying facts supporting its
assertion that the amount in controversy exceeds $75,
000." Abrego Abrego v. The Dom> Chem. Co.,
AA2 F.3d 676, 689 (9th Cir. 2006) (emphasis and
quotation omitted); see also Singer v. State Farm Mut.
Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)
("[R]emoval cannot be based simply upon conclusory
allegations where the ad damnum is silent.") (internal
quotations and citation omitted).
a complaint is unclear as to the total amount of damages
sought, but alleges only upper or lower limits or types of
damages, a district court is free in its
preponderance-of-the-evidence analysis to make estimations of
the amount of damages that could be obtained consistent with
the vague wording of the complaint." Elliker v.
Contractors Bonding & Ins. Co.,
3:12-CV-00438-RCJ-WGC, 2013 WL 757621 at *1 (D. Nev. Feb. 27,
2013) (citing Guglielmino v. McKee Foods Corp., 506
F.3d 696, 700-01 (9th Cir. 2007)). In making such analyses,
district courts can make "reasonable deductions,
reasonable inferences, or other reasonable extrapolations
from the pleadings to determine whether it is facially
apparent that a case is removable, " and "may use
their judicial experience and common sense in determining
whether the case stated in a complaint meets federal
jurisdictional requirements." Roe v. Michelin N.
Am., Inc., 613 F.3d 1058, 1061-62 (11th Cir.
2010) (internal quotation marks omitted). See also
Ashcroft v. Iqbal, 556 U.S. 662, 679(2009)
("Determining whether a complaint states a plausible
claim for relief. . . requires the reviewing court to draw on
its judicial experience and common sense.").
there is considerable doubt as to GEICO's right to remove
this case because it appears highly unlikely that the amount
in controversy exceeds this court's jurisdictional
threshold. Gugino alleges that she suffered injuries in a
rear-end automobile accident. ECF No. 1-1. The tortfeasor was
"underinsured, " not uninsured, and thus her
insurer presumably paid some amount towards Gugino's
injuries. Id. at 4. GEICO asserts Gugino's
medical bills were approximately $11, 500.00 in September
2016. ECF No. 11-1 at 2. GEICO offers no evidence that Gugino
has incurred or will incur any other medical bills; nor has
GEICO offered any evidence about lost wages. Even adding some
amounts for future medical bills and lost wages, the overall
amount of recovery still appears small.
complaint asserts four claims for relief, each seeking
between $15, 000 and $75, 000. GEICO improperly attempts to
lump those together to say that the amount in controversy is
therefore at least $60, 000 to $300, 000. But Gugino has
pleaded some of those claims in the alternative and,
regardless, she is entitled to only one recovery for her
damages. And although Gugino has also asserted claims for
extra-contractual and punitive damages, GEICO offers no
evidentiary support other than the fact that her complaint
requests such damages.
contends a large punitive damages award is possible even if
the compensatory damage award is small. However, under
GEICO's analysis, I would have to hold that every (or
nearly every) insurance bad faith lawsuit seeking
extra-contractual or punitive damages satisfies the $75, 000
jurisdictional threshold. That runs contrary to
well-established law regarding removal.
on my judicial, legal, and practical experience and common
sense, I find that GEICO has not met its burden of
establishing by a preponderance of the evidence that the
amount in controversy exceeds $75, 000. Roe, 613
F.3d at 1061-62; Iqbal, 556 U.S. at 679.
Consequently, I must remand this action to state court.
THEREFORE ORDERED the case is remanded to the state court
from which it was removed for all further proceedings. The
Clerk of the Court is instructed to ...