Mielke v. Allstate Ins. Co.

Decision Date09 July 1979
Docket NumberCiv. A. No. 9-71431.
Citation472 F. Supp. 851
PartiesHerbert O. MIELKE, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant.
CourtU.S. District Court — Western District of Michigan

Donald J. Morbach, Morbach, Cheatham & MacArthur, Detroit, Mich., for plaintiff.

Roger A. Smith, Garan, Lucow, Miller, Lehman, Seward & Cooper, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

The plaintiff brought this action against the insurance company under a no-fault insurance policy when the company failed to pay the amount due under the policy. The initial complaint stated a claim for insurance benefits and for damages caused by Allstate's failure to pay promptly, and asked for a declaration that the policy of insurance be held applicable and that the plaintiff be compensated pursuant to the statute and policy and for exemplary and punitive damages. It did not put a dollar amount on the claim.

Fifteen days after filing the initial complaint, the plaintiff filed an amended complaint in which he put a dollar amount on the claim by asking recovery in the amount of more than Five Million Dollars. Allstate filed a petition to remove the case to federal court 30 days after receiving the plaintiff's amended complaint.

The plaintiff contends that the defendant should have known from the face of the original complaint that more than $10,000 was involved. The defendant had actual knowledge that the insurance claims on which the suit was based were over $10,000. Therefore, the plaintiff contends that the defendant should have removed within 30 days of the defendant's receipt of the original complaint from which the defendant, in light of its knowledge, could ascertain that the case was removable.

The defendant contends that by filing the petition for removal within 30 days after receipt of the amended complaint (the first complaint to demand a specific amount above $10,000), it has complied with the removal statute and that removal was timely.

A case may be removed even if the complaint does not specifically state an amount in controversy which is sufficient for removal. Horak v. Color Metal of Zurich, Switzerland, 285 F.Supp. 603 (D.N.J. 1968); W. M. Inman v. Milwhite Co., 261 F.Supp. 703 (E.D.Ark.1966). Often a specific claim is not necessary to the plaintiff's state court action and there will be no reason for the plaintiff to include it in the complaint. According to 28 U.S.C. § 1446(b), the complaint only needs to set forth the claim for relief upon which the action to be removed is based. Horak, supra.

Allstate could certainly have removed the case based on the initial complaint. The defendant's counsel admitted in court that it had known since before the filing of the suit that the claims under that insurance policy alone were well in excess of $10,000. The plaintiff had presented the defendant company medical bills and expenses of over $10,000. It was clear from the original complaint that all of those claims under the policy, plus tort damage claims against the insurance company, were included in the recovery sought.

When the defendant should clearly ascertain from the circumstances and the original complaint that the case is removable,...

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38 cases
  • Groesbeck Investments, Inc. v. Smith, 02-70058.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 30 Septiembre 2002
    ...whether removability of an action is ascertainable from a plaintiff's initial pleading. As the court found in Mielke v. Allstate Insurance Company, 472 F.Supp. 851 (E.D.Mich.1979), "there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguou......
  • Fenza's Auto Inc v. Montagnaro's Inc
    • United States
    • U.S. District Court — District of New Jersey
    • 21 Marzo 2011
    ...LaCaffinie v. Std. Fire Ins. Co., No. 10-207, 2010 U.S. Dist. LEXIS 53151, at *10-11 (W.D. Pa. May 28, 2010); Mielke v. Allstate Ins. Co., 472 F. Supp. 851, 853 (E.D. Mich 1979). "In making this determination, most federal courts will review the facts available to the defendant at the outse......
  • Rollwitz v. Burlington Northern RR
    • United States
    • U.S. District Court — District of Montana
    • 28 Enero 1981
    ...and denied removal to defendants who failed to remove within 30 days of receiving the complaint. See also Mielke v. Allstate Ins. Co., 472 F.Supp. 851 (E.D.Mich.1979). In these cases the courts rejected the respective defendants' contentions that the thirty-day period for seeking removal di......
  • Casteel v. Sara Lee Corp.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 7 Junio 1999
    ...plaintiff's failure to state an amount in controversy that establishes federal jurisdiction." Id. (citing Mielke v. Allstate Insurance Co., 472 F.Supp. 851, 852-853 (E.D.Mich.1979)). "Where the plaintiff's pleadings are insufficient to determine the amount in controversy, the court may cons......
  • Request a trial to view additional results
1 books & journal articles
  • Amount in controversy and removal: current trends and strategic considerations.
    • United States
    • Defense Counsel Journal Vol. 62 No. 4, October 1995
    • 1 Octubre 1995
    ...Cir. 1992), with Price v. Messer, 872 F.Supp. 317 (S.D. W.Va. 1995), and Mize v. Amercraft Corp., 874 F.Supp. 356 (M.D. Ala. 1994). [7.] 472 F.Supp. 851 (E.D. Mich. 1979). [8.] Id. at 853. See also Turner v. Wilson Foods Corp., 711 F.supp. 624 (N.D. Ga. 1989); Richman v. Zimmer, 644 F.Supp.......

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