United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
Karen Vick sued her insurer, Defendant Garrison Property and
Casualty Insurance Company, in an attempt to force it to
cover the cost of repairing the roof of a home she owns in
Incline Village, Nevada, which was damaged by snow and ice
during the snowy winter of 2016-2017-leading to leaks and
water damage. (ECF No. 1-1.) Defendant removed based on
diversity jurisdiction. (ECF No. 1.) The Court issued an
order to show cause why this action should not be remanded
for lack of subject matter jurisdiction on February 8,
2019. (ECF No. 6.) Because Defendant has failed
to meet its preponderance burden to show the amount in
controversy requirement is satisfied, and as explained below,
the Court will remand this action.
courts are courts of limited jurisdiction, having
subject-matter jurisdiction only over matters authorized by
the Constitution and Congress. See U.S. Const. art.
III, § 2, cl. 1; see also, e.g., Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A suit filed in state court may be removed to federal
court if the federal court would have had original
jurisdiction over the suit at commencement of the action.
See 28 U.S.C. § 1441(a). However, courts
strictly construe the removal statute against removal
jurisdiction, and “[f]ederal 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).
establish subject matter jurisdiction pursuant to diversity
of citizenship under § 1332(a), the party asserting
jurisdiction must show: (1) complete diversity of citizenship
among opposing parties and (2) an amount in controversy
exceeding $75, 000. See 28 U.S.C. § 1332(a).
Where, as here, it is not facially evident from the Complaint
that $75, 000 was in controversy at the time of removal, a
defendant must prove, by a preponderance of the evidence,
that the amount in controversy requirement is met. See
Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th
the preponderance of the evidence standard, a removing
defendant must “provide evidence establishing that it
is ‘more likely than not' that the amount in
controversy exceeds” the jurisdictional minimum.
Id. (citations omitted). As to the kind of evidence
that may be considered, the Ninth Circuit has adopted the
“practice of considering facts presented in the removal
petition as well as any ‘summary-judgment-type evidence
relevant to the amount in controversy at the time of
removal.'” Matheson v. Progressive Specialty
Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting
Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d
373, 377 (9th Cir. 1997)). Conclusory allegations are
insufficient. See Id. at 1090-91 (citation omitted).
Court must reject diversity jurisdiction here because there
is at least some doubt as to Defendant's right of removal
in the first instance. See Gaus, 980 F.2d at 566.
Defendant proposes the Court use a formula derived from
Guglielmino v. McKee Foods Corp., 506 F.3d 696, 698
(9th Cir. 2007) to calculate the amount in controversy. (ECF
No. 10 at 2, 7.) Defendant argues that applying that formula
to the bid Plaintiff received to repair her roof ($29, 712),
and accounting for the fact Plaintiff seeks punitive damages
and attorneys' fees, results in “a total of $63,
188 in controversy before quantifying the property
damage caused by the ongoing water intrusion.”
(Id. at 7.) Defendant goes on to argue, “[a]
mere $6, 000 in property damage as a result of the current
water leaks would exceed the amount in controversy
requirement under the Guglielmino method.”
(Id. (footnote omitted).) “It is nearly
inconceivable that the extensive leakages described by
Plaintiff have not caused $6, 000 in property damage.”
(Id.) Plaintiff counters the amount in controversy
requirement is not satisfied because she does not claim
damages in excess of $75, 000: Plaintiff got a bid for $29,
712 to repair her roof, and even adding potential alleged
statutory and punitive damages, and attorneys' fees, her
claimed damages do not sum to an amount exceeding $75, 000.
(ECF Nos. 8, 8-1, 8-2.)
Court agrees with Plaintiff. Even using Defendant's
proffered Guglielmino method, Defendant can only
arrive at an amount in controversy of $63, 188. (ECF No. 10
at 7.) That is not enough. Further, Defendant offers nothing
beyond speculation to support its assertion that the alleged
ongoing leaks in Plaintiff's roof will cost more than $6,
000 to repair. Regardless, Defendant's speculative
argument about the cost to repair ongoing leaks fails on its
own terms because adding $6, 001 (more than $6, 000) to $63,
188 sums to $69, 189. That is less than the required $75,
000. See 28 U.S.C. § 1332(a). “Where
doubt regarding the right to removal exists, a case should be
remanded to state court.” Matheson, 319 F.3d
at 1090; see also Lazar v. Csaa Fire & Cas. Ins.
Co., No. 2:18-cv-01374-MMD-VCF, 2018 WL 4778037, at *2
(D. Nev. Oct. 3, 2018) (remanding insurance case where
Defendant failed to establish under preponderance standard
that amount in controversy requirement was satisfied);
Pura v. State Farm Mut. Auto. Ins. Co., No.
2:18-cv-01162-MMD-NJK, 2018 WL 3649022, at *2 (D. Nev. Aug.
1, 2018) (same).
the Court will remand this action for lack of subject matter
Court notes that the parties made several arguments and cited
to several cases not discussed above. The Court has reviewed
these arguments and cases and determines that they do not
warrant discussion as they do not affect the outcome of the
issues before the Court.
removal was improper because the amount in controversy falls
short. The Clerk of Court is directed to remand this action
to the Second Judicial District Court for the State of ...