Wright v. Continental Cas. Co., 78-381-Orl-Civ-Y.

• Decision Date: 14 September 1978
• Docket Number: No. 78-381-Orl-Civ-Y.,78-381-Orl-Civ-Y.
• Citation: 456 F. Supp. 1075
• Parties: Robert A. WRIGHT, Plaintiff, v. CONTINENTAL CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Florida

456 F. Supp. 1075

Robert A. WRIGHT, Plaintiff, v. CONTINENTAL CASUALTY COMPANY, Defendant.

No. 78-381-Orl-Civ-Y.

United States District Court, M. D. Florida, Orlando Division.

September 14, 1978.

David M. Hammond, Meyers, Mooney & Adler, P. A., Orlando, Fla., for plaintiff.

Walton B. Hallowes, Jr., Wells, Gattis & Hallowes, P. A., Orlando, Fla., for defendant.

MEMORANDUM OPINION

GEORGE C. YOUNG, Chief Judge.

This cause came before the Court for hearing on the plaintiff's response in opposition to the defendant's petition for removal grounded on diversity. Plaintiff has opposed the removal of his case to this Court on two grounds. First, plaintiff contends that in determining the amount in controversy for purposes of deciding whether jurisdiction to remove a case exists under 28 U.S.C. §§ 1332 and 1441(a) the Court must look only to the allegations in the plaintiff's complaint and not to the allegations in the defendant's petition for removal. Second, the plaintiff argues that because the defendant corporation has registered to do business in the State of Florida and has thereby agreed to accept service of process through the state insurance commissioner pursuant to state law, the defendant has waived its right to remove cases from the Florida courts.

The plaintiff's complaint, originally filed in the state circuit court, alleges damages in an amount in excess of $2,500.00 as is permitted by Florida procedure. From the face of the complaint it is not evident therefore whether the amount in controversy in this cause exceeds $10,000.00 or not. The defendant's petition for removal, however, alleges that the matters in dispute herein exceed the sum of $10,000.00 exclusive of interest and costs.

The plaintiff has not filed a motion to remand the case. Such a motion would put in issue the factual question of whether or not more than $10,000.00 is in dispute. Instead, the plaintiff has argued that as a matter of law the Court may not consider the allegations in the petition for removal, if the complaint fails to disclose the amount in controversy. The complaint in this case does fail to disclose whether the amount in controversy exceeds $10,000.00, but the petition for removal affirmatively alleges that more than $10,000.00 is at issue.

Turning first to Professor Wright's treatise, the Court finds that:

"There are cases that say that the grounds for removal must appear on the face of the complaint, unaided by reference to the other pleadings or to the petition for removal. It is entirely clear, however, that this is not the rule . .. Thus the citizenship of the parties will not normally be set forth in a state court complaint, and the defendant, seeking to remove on the basis of diversity, must be permitted to show these facts in his petition. In some circumstances the complaint will not sufficiently disclose the jurisdictional amount, and the petition must be used for this purpose. footnotes omitted

C. Wright, Federal Courts 163-64 (3rd ed. 1976); See also 1A Moore's Federal Practice ¶ 0.168 3.-4 at 459-60 (2d ed. 1974). In support of this conclusion Professor Wright refers in a footnote to the decision rendered by the Fifth Circuit in Gaitor v. Peninsular & Occidental Steamship Company, 287 F.2d 252 (5th Cir. 1961). The mere fact that the complaint "is couched in nebulous mathematical phraseology" does not deprive a defendant of his right to remove a case if the defendant can allege in his petition for removal that all the requisite factors of diversity jurisdiction, including the amount in controversy, exist at the time of removal. 287 F.2d at 255.

Once the defendant has alleged specifically in his petition for removal each of the factors necessary to establish jurisdiction in the federal court, then the case is properly before the federal court. Removability is determined by the allegations of the complaint if it adequately alleges the amount in controversy; but, if it does not, then the Court may look to the petition for removal. Davenport v. Procter & Gamble Manufacturing Co., 241 F.2d 511, 514 (2d Cir. 1957). Looking to the petition in the case at bar the Court finds it adequately establishes that diversity jurisdiction exists.

For purposes of clarification, the Court must distinguish the present case from those cases in which the plaintiff files a motion for remand and expressly denies one or more material allegations of the defendant's petition for removal. Where the petition for removal alleges facts, which, if true, are legally insufficient, when considered along with the allegations of the complaint, to establish the existence of federal jurisdiction, then the case must be remanded forthwith. The defendant bears the initial burden of adequately alleging jurisdiction on removal. No hearing is necessary. Bell v. Taylor, 509 F.2d 808 (5th Cir. 1975).

But if the allegations of the petition for removal are legally sufficient on their face to justify removal and the plaintiff by means of motion to remand denies any of the allegations, then a factual determination is necessary. Kaslo v. City of Meridian, Mississippi, 360 F.2d 282 (5th Cir. 1966). Once the plaintiff has put the allegations of the defendant's petition for removal at issue by denying them specifically in a motion to remand, then the burden of proof is upon the defendant to come forward with evidence to prove the allegations contained in the removal petition. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

Depending on the posture of the case in the state court and the jurisdictional questions involved, a hearing may be necessary to determine if the allegations of the petition for removal are true. By means of interrogatories, requests for admissions, or...