Hall v. Travelers Ins. Co., 1:87-cv-2372-JOF.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Writing for the Court: FORRESTER
• Citation: 691 F. Supp. 1406
• Parties: James Rudolph HALL, Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant.
• Docket Number: No. 1:87-cv-2372-JOF.,1:87-cv-2372-JOF.
• Decision Date: 10 August 1988

691 F. Supp. 1406

James Rudolph HALL, Plaintiff,
v.
TRAVELERS INSURANCE COMPANY, Defendant.

No. 1:87-cv-2372-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

April 29, 1988.

Order August 10, 1988.

691 F. Supp. 1407

Frederick Jackson, Decatur, Ga., for plaintiff.

Bryan Dorsey, Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This matter is before the court on issues raised by defendant Travelers Insurance Company's petition for removal. 28 U.S.C. §§ 1441(a), 1446. Plaintiff's complaint, brought pursuant to O.C.G.A. § 33-4-6 (bad faith failure to pay insurance proceeds), was filed in September 1987 in the Superior Court of DeKalb County. By defendant's petition filed October 30, 1987, this action was removed to this court. Jurisdiction is premised upon 28 U.S.C. § 1332(a)(1) (diversity of citizenship). Plaintiff challenges the propriety of defendant's petition on jurisdictional amount grounds. 28 U.S.C. § 1332(a).

Preliminary Concerns

As a preliminary matter, the court notes that the parties' handling of this entire dispute has apparently been conducted with little if any regard to applicable rules of procedure. First, no formal motion is before the court for consideration. Indeed, this matter was submitted for ruling on "Plaintiff's Response to Defendant's Petition for Removal," filed November 16, 1987. Because a court order is not a prerequisite

691 F. Supp. 1408

to the removal of a case from a state court, the propriety of a removal can only be challenged by a party through a motion to remand filed pursuant to 28 U.S. C. § 1447(c). See Howes v. Childers, 426 F.Supp. 358 (D.C.Ky.1977). Nevertheless, because plaintiff's response to defendant's petition for removal raises questions concerning the court's subject matter jurisdiction, it will be treated as a motion to remand

Second, the parties have engaged in a "war of briefs" in complete disregard of the local rules of this district. With plaintiff's "motion" having been filed November 16, 1987, defendant's responsive brief was due by the end of November. Local Rule 220-1(b)(1) (response shall be filed not later than ten days after the motion). Nevertheless, defendant's response was filed December 8, 1987. Plaintiff was then entitled to file a reply brief within ten days of defendant's response. Local Rule 220-1(b)(2) (reply shall be filed not later than ten days after response). This deadline notwithstanding, plaintiff's reply was filed December 28, 1987. Finally, on January 13, 1988 defendant filed a completely unauthorized brief in response to plaintiff's reply. Id. (no further supplemental briefs may be filed except by leave of court).

Because plaintiff's motion to remand has never been designated as such, the court will not penalize defendant for filing an untimely brief — particularly, since its timeliness is governed by a local rule captioned, "Filing of Motions and Responses." Local Rule 220-1. Plaintiff's December 28, 1987 reply brief, however, is stricken as untimely. Local Rule 220-1(b)(2). Similarly, defendant's January 13, 1988 reply brief is stricken as having been filed without leave of court. Id.

Removal Jurisdiction: Amount in Controversy

1. Motions to Remand

A motion to remand may be considered only on the grounds that the case was "removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c). When considering such a motion, a court should examine closely the grounds asserted for its subject matter jurisdiction. "As a congressionally imposed infringement upon a state's power to determine controveries in their sic courts, removal statutes must be strictly construed." Cowart Ironworks, Inc. v. Phillips Construction Co., 507 F.Supp. 740, 743 (S.D.Ga.1981). "Where the basis for jurisdiction is doubtful, the court should resolve such doubt in favor of remand." Id.; Clyde v. National Data Corp., 609 F.Supp. 216 (N.D.Ga.1985). With these principles in mind, the court will consider the merits of plaintiff's motion.

2. Basis for Plaintiff's Motion

As alluded to above, plaintiff bases his challenge to defendant's removal petition on the jurisdictional amount in controversy. 28 U.S.C. § 1332(a). Specifically, plaintiff points to his prayer for damages wherein he seeks: "(a) damages in the sum of $4,900.76; (b) the cost of storage of plaintiff's damaged automobile at a rate of $5.00 per day; (c) a sum equal to 25 percent of defendant's liability for said damages; (d) punitive damages; (e) reasonable attorney fees; and (f) such other relief that the court deems just and proper." Complaint, ¶ 11. It is argued that those damages capable of reasonably accurate calculation fail to reach the requisite jurisdictional amount, Brief, ¶ 2. Defendant concedes that the damages sought by plaintiff in (a), (b) and (c) above total no more than $7,938.45,¹ but asserts that "the claim for attorney fees and punitive damages makes the amount in controversy over $10,000." Response at 2.

3. Punitive Damages

In support of its contention that plaintiff's claim for unspecified punitive damages may be considered by the court in assessing jurisdictional amount, defendant cites Judge Tidwell's order in Swafford v. Transit Casualty Co., 486 F.Supp. 175

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(N.D.Ga.1980). Citing Bell v. Preferred Life Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943), the court stated, "It is clear that in determining the jurisdictional amount in controversy, punitive damages are to be counted." Swafford at 177. However, the Supreme Court's holding in Bell to...