Simpson v. Primerica Life Ins., Co.

• Decision Date: 03 December 2015
• Docket Number: Case No. 2:15-cv-777-WKW-PWG
• Parties: CHARLENE AND JOISHA SIMPSON, Plaintiffs, v. PRIMERICA LIFE INSURANCE, CO. et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

CHARLENE AND JOISHA SIMPSON, Plaintiffs, v. PRIMERICA LIFE INSURANCE, CO. et al., Defendants.

Case No. 2:15-cv-777-WKW-PWG

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

December 3, 2015

REPORT AND RECOMMENDATION

On September 18, 2015, Charlene Hayes Simpson and Joisha Artor Simpson filed a civil complaint in the Circuit Court of Montgomery County, Alabama. (Doc. 2-1). The state court complaint, sounding exclusively in state law, alleges claims under the following counts: (1) negligence, (2) wantonness, (3) negligent and wanton hiring, training or supervision (4) invasion of privacy and violation of "the identity theft laws of Alabama, Code of Alabama, Article 10, The Consumer Identity Protection Act, §§ 13A-8-199, [] 13A-8-200-201, (5) intentional infliction of emotional distress, (6) outrage,¹ (7) conversion, and (8) "fraud misrepresentation" against Premerica LifeInsurance, Co., Robert Nelson, and various unnamed fictitious defendants. (Doc. 2-1). On October 22, 2015, Defendants removed the dispute to the United States District Court for the Middle District of Alabama, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.

On October 26, 2015, within the 30 day requirement of 28 U.S.C. § 1447(c), Plaintiffs filed an "objection" to the notice of removal and "[m]otion to transfer this matter back to the ... Circuit Court of Montgomery, Alabama," which is construed as a motion to remand. (Doc. 1). In the motion, Plaintiffs argue that neither complete diversity of the parties nor the minimum amount in controversy are present.

On October 29, 2015, Defendants were ordered to show cause by November 12, 2015 why this action should not be remanded to state court for lack of subject matter jurisdiction at the time of removal. (Doc. 6). On November 4, 2015, Defendants filed a motion seeking jurisdictional discovery on the issue of the amount in controversy and for a "60 day deferral" before being required to file a response to the show cause order. (Doc. 7). That motion is denied in a separate order. On November 12, 2015, Defendants tendered a brief and evidentiary submission in response to the show cause order and reiterated their request for jurisdictionaldiscovery. (Doc. 8).

The matter is before the undersigned pursuant to the order of reference dated October 28, 2015. (Doc. 5). See also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72; United States v. Raddatz, 447 U.S. 667 (1980); Jefferey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507 (11th Cir. 1990). The motion to remand is taken under submission on the record and without oral argument. For the reasons discussed below, the motion to remand is due to be granted and this cause remanded to the Circuit Court of Montgomery County, Alabama. Defendants have not demonstrated complete diversity of citizenship of the parties nor have they met their burden to show the minimum amount in controversy.

I. PLAINTIFFS' COMPLAINT AND DEFENDANTS' NOTICE OF REMOVAL

Plaintiffs' allegations of fact against all Defendants are set out in four separate paragraphs and on a single page of the state court complaint. (Doc. 2-1 at p. 3, ¶¶ 5-8). They are brief.

Plaintiffs allege that they and all named Defendants are citizens of the State of Alabama. As a basis for their claims, Plaintiffs assert that Defendants, without permission, withdrew $110.00 from Plaintiffs' bank account to pay for an insurance policy Plaintiffs did not purchase. That unauthorized withdrawal by Defendantscaused Plaintiffs' bank account to be overdrawn such that Plaintiffs were unable to make a scheduled payment on their auto loan, and the lender repossessed Plaintiffs' car. According to the complaint, when Plaintiffs contacted Defendant Nelson to inform him of the unauthorized debit from their account, Mr. Nelson "explained ... that their Social Security Number[s] [were] their signature and []authorized him to take the policy out and debit their accounts." (Doc. 2-1 at p. 3). Defendants replaced the money debited for the insurance policy, but the car has not been returned.

On those alleged facts, Plaintiffs demand compensatory and punitive damages as well as attorney's fees and costs. Plaintiffs also allege that they are entitled to compensation for "pain," "suffering," "personal injury," "mental anguish," "loss of enjoyment of life," and "great mental and emotional distress and emotional damage" based on the negligent and willful actions of Defendants, without any additional specificity. Plaintiffs further aver that they "have been made ill as a result of this mental and emotional distress[,]" but they do not provide any illumination or details on their illnesses. (Doc. 2-1 at p. 6).

In the notice of removal, Defendants assert that the parties are completely diverse in their citizenship as required by § 1332. They further allege that the minimum amount in controversy requirement is evident (1) on the face of the complaint despite the fact that Plaintiffs do not make a specific damages demand, (2) because of asettlement offer by Plaintiffs' counsel to resolve this dispute for $250,000.00, (3) other cases decided in Alabama courts resulted in jury awards in excess of the amount in controversy, and (4) the value of Plaintiffs' 2008 Honda Accord,² which Defendants provide evidence is worth between $9,622 - $12,359.³

II. DISCUSSION

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). A federal district court is "'empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,' and which have been entrusted to them by a jurisdictional grant authorized by Congress." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter jurisdiction "at the earliest possible stage in the proceedings." Id. at 410. "It is to be presumed that acause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377.

When, as here, the purported statutory basis for federal jurisdiction is § 1332(a)(1)—a civil action satisfying the amount-in-controversy requirement and between "citizens of different States"—there must be "complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Also, "[d]iversity jurisdiction exists where ... the amount in controversy exceeds the statutorily prescribed amount, in this case, $75,000." Griffith v. Wal-Mart Stores East, L.P, 884 F. Supp. 2d 1218, 1222 (N.D. Ala. 2012) (citing Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001)). Removal jurisdiction requires both complete diversity and satisfaction of the requisite amount in controversy. A case does not become removable until both conditions are present.

"Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court." Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). A removing defendant must establish the propriety of removal under 28 U.S.C.§§ 1441, 1446 and, therefore, must demonstrate the existence of federal jurisdiction. See, e.g., Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) ("the burden of establishing removal jurisdiction rests with the defendant seeking removal"); City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 n.1 (11th Cir. 2012) ("The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction."). The procedural propriety of removal is often intertwined with the substantive question of the existence of subject matter jurisdiction. Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all jurisdictional doubts being resolved in favor of remand to state court. Burns, 31 F.3d at 1095.

When a case is removed—that is, which provision of 28 U.S.C. § 1446(b) ((b)(1) or (b)(3)) a removing defendant invokes—also governs the burden of proof as to amount in controversy. See, e.g., Jones v. Novartis Pharms. Co., 952 F. Supp. 2d 1277, 1281-82 (N.D. Ala. 2013) ("The removal procedure statute contemplates two ways that a case may be removed based on diversity jurisdiction. The first way (formerly referred to as 'first paragraph removals')[, and accomplished pursuant to 28 U.S.C. § 1446(b)(1),] involves civil cases where the jurisdictional grounds for removal are apparent on the face of the initial pleadings. The second way (formerly referred to as 'second paragraph removals') contemplates removal where thejurisdictional grounds later become apparent through the defendant's receipt of 'an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.'" (quoting 28 U.S.C. § 1446(b)(3) (footnote omitted)).⁴

In the notice of removal, Defendants contended that the lawsuit at issue is removable generally pursuant to § 1446(b), but do not specify whether this is a (b)(1) or a (b)(3) removal. That distinction is normally apparent upon the facts pled in a notice of removal, which should clearly designate whether the removing party construed the initial pleading as being removable on its face, and therefore a (b)(1) removal, or if there is (b)(3) "other paper" received from Plaintiffs that caused the jurisdictional amount to become apparent. Because the...