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Redsull v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. Nevada

May 2, 2018

THOMAS REDSULL, Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants.

          ORDER

         Presently before the court is plaintiff Thomas Redsull's motion to remand to state court. (ECF No. 4). Defendant State Farm Mutual Automobile Insurance Company filed a response (ECF No. 8).

         Also before the court is defendant's motion to dismiss. (ECF No. 3). Plaintiff filed a response (ECF No. 6), to which defendant replied (ECF No. 7).

         I. Facts

         The instant action involves a contract dispute between plaintiff, a Nevada resident, and defendant, an Illinois corporation. (ECF No. 1). On August 18, 2015, plaintiff was involved in an automobile accident in Las Vegas, Nevada. (ECF No. 4). The tortfeasor was insured under two separate insurance policies with a combined total of bodily injury liability coverage of $65, 000.00. Id. Plaintiff has previously recovered $65, 000.00 from the tortfeasor's insurers. Id.

         The injuries and damages sustained by plaintiff in the accident are in excess of the available bodily injury liability limits which were available to the tortfeasor. (ECF No. 1, Ex. A). Plaintiff made demand upon defendant, plaintiff's insurer, to tender the $15, 000.00 value of his underinsured motorist policy with defendant. Id. Upon refusal, plaintiff then filed the underlying complaint in state court on January 2, 2018. Id.

         The complaint alleges claims for relief related to breach of contract and seeks monetary damages only in excess of the $65, 000.00 previously recovered from the tortfeasor's insurance carriers. Id. Specifically, plaintiff seeks general damages in an amount in excess of $10, 000.00, special damages to be determined at trial, punitive damages in an amount in excess of $10, 000.000, and for costs of the suit and reasonable attorney's fees. Id.

         Defendant removed the action to federal court on February 9, 2018, pursuant to 28 U.S.C. § 1441(a). (ECF No. 1).

         In the instant motion, plaintiff moves to remand the action to state court. (ECF No. 4).

         II. Legal Standard

         Pursuant to 28 U.S.C. § 1441(a), “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).

         For a United States 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, exclusive of interest and costs. See 28 U.S.C. § 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1098 (9th Cir. 2003). A removing defendant has the burden to prove by a preponderance of the evidence that the jurisdictional amount is met. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).

         Procedurally, a defendant has thirty (30) days upon notice of removability to remove a case to federal court. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)). Defendants are not charged with notice of removability “until they've received a paper that gives them enough information to remove.” Id. at 1251.

         Specifically, “the ‘thirty day time period [for removal] . . . starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face' the facts necessary for federal court jurisdiction.” Id. at 1250 (quoting Harris v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91 (9th Cir. 2005) (alterations in original)). “Otherwise, the thirty-day clock doesn't begin ticking until a defendant receives ‘a copy of an amended pleading, motion, order or other paper' from which it can determine that the case is removable. Id. (quoting 28 U.S.C. § 1446(b)(3)).

         A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. § 1447(c). Remand to state court is proper if the district court lacks jurisdiction. Id. On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal is proper. Sanchez v. Monumental Life Ins. ...


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