HOWARD HUDSON SARAH STRINGER v. McGOWAN

W. ALBRITTON III, Senior District Judge

This cause is before the court on the Plaintiffs' Dismissal of ALFA Insurance Company ("ALFA") (Doc. #6) and the Plaintiffs' First Motion to Remand (Doc. #10).

The Plaintiffs originally filed their case in the Circuit Court of Macon County, Alabama on December 29, 2009. The Plaintiffs are citizens of Alabama, Defendant Diane McGowan is a citizen of Georgia, and the underinsured motorist carrier, ALFA, is a citizen of Alabama.

The Plaintiffs bring claims arising out of an automobile accident. They do not claim a specific amount in damages.

Defendant McGowan removed the case to this court on January 20, 2010, on the basis of diversity jurisdiction. The Plaintiffs then sought to dismiss ALFA, stating that the case is within Defendant McGowan's insurance policy limits. ALFA joined in the removal. Finally, the Plaintiffs filed their Motion to Remand the case to state court on the basis that the amount in controversy does not exceed $75,000, and that the Plaintiffs will not accept more than $75,000. The Plaintiffs do not contend that there is a lack of complete diversity of parties.

For reasons to be discussed, the Motion to Remand is due to be DENIED, and ALFA is due to be DISMISSED.

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1994); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir. 1983), cert. denied, 465 U.S. 1103 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.

A federal district court may exercise subject matter jurisdiction over a civil action in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states," in which the jurisdictional amount is met. Id. To satisfy diversity, not only must a plaintiff be a citizen of a state other than the state of which one defendant is a citizen, but also, under the rule of "complete diversity," no plaintiff may share the same state citizenship with any defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).

In this case, although ALFA is a citizen of Alabama, ALFA, the underinsured motorist carrier, is a nominal party whose citizenship does not destroy diversity. See Broyles v. Bayless, 878 F.2d 1400, 1402 (11th Cir. 1989); Toole v. Chupp, 456 F. Supp. 2d 1218 (M.D. Ala. 2006) (Thompson, J.); and Oliver v. Rodriquez, No. 2:08cv81, 2008 WL 928328 (M.D. Ala. April 4, 2008) (Albritton, J.)

When an ad damnum clause includes a demand for a specific amount of damages which is less than the jurisdictional amount, the defendant is "required to prove to a legal certainty that plaintiff, if [he or] she prevailed, would not recover below [$75,000.00]. " Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994). In other words, the defendant must show that "an award below the jurisdictional amount would be outside the range of permissible awards because the case is clearly worth more than [$75,000.00]." Id. at 1096. However, to sustain federal removal jurisdiction based on diversity of citizenship in a case in which the complaint as filed in a state court seeks an unspecified amount of damages, the burden is on the defendant to prove by the preponderance of the evidence that the amount in controversy, exclusive of interests and costs, exceeds $75,000.00. See, e.g., Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996).

McGowan attached to her Notice of Removal evidence of a certificate of coverage, which reflects that her automobile insurance policy limits are $100,000. See Exhibit C to Notice of Removal. McGowan also attached a letter, dated January 15, 2010, in which the attorney for the Plaintiffs states that his clients will not accept anything less than policy limits. See Exhibit D to Notice of Removal. In addition, the Plaintiffs sued not only McGowan, whose policy limits exceed $75,000, but also their underinsured motorist carrier, ALFA.

The Plaintiffs represent, through their attorney, in their February 3, 2010 Motion to Remand, that the case does not exceed the jurisdictional limits. Jurisdiction must be evaluated at the time the case was removed, however. See Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). The evidence of the letter, evidence that McGowan's policy limits exceed $75,000, and the fact that the underinsured motorist carrier was also sued, all of which were present at the time of removal, establish that the jurisdictional amount existed at the time of removal. Cf. Bankhead v. Am. Suzuki Motor Corp., 529 F. Supp. 2d 1329, 1334 (M.D. Ala. 2008) (Thompson, J.) (finding that initial settlement demand letter established the amount in controversy and second letter was a post-removal attempt to waive a certain amount of damages). The Plaintiffs' post-removal dismissal of ALFA on the basis that McGowan's policy limits cover the damages claimed in this case, and representation that they do not seek more than $75,000, do not divest the court of jurisdiction. See Leonard, 279 F.3d at 972 (stating that if jurisdiction was proper at the time of removal, "subsequent events, even the loss of the required amount in controversy, will not operate to divest the court of jurisdiction."). Therefore, this court has diversity jurisdiction in the case.

For the reasons discussed, this court has diversity subject matter jurisdiction. Therefore, it is hereby ORDERED as follows:

1. The Plaintiffs' Motion to Dismiss ALFA Insurance Company (Doc. #6) is GRANTED and ALFA Insurance Company is DISMISSED with prejudice.

2. The Plaintiffs' Motion to Remand (Doc. #10) is DENIED.

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04 2. Time for Filing : The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. 3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).