KATHERINE P. NELSON, Magistrate Judge.
This action is before the Court on the motion to remand under 28 U.S.C. § 1447(c) (Doc. 6) filed by Plaintiff Melanie Glass-Wyble. The assigned District Judge has referred the motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (3/6/2019 electronic reference). Defendant Geico Casualty Company (asserting that it has been misidentified in the complaint as "Geico Insurance Company") (hereinafter, "Geico") timely filed a response (Doc. 13) in opposition to the motion, and Glass-Wyble timely filed a reply (Doc. 14), and the motion to remand is now under submission (see Doc. 9).
Upon consideration, and pursuant to § 636(b)(1)(B)-(C) and Rule 72(b)(1), the undersigned will recommend that the Court grant Glass-Wyble's motion to remand (Doc. 6).
Glass-Wyble commenced this case on November 27, 2018, by filing a three-count complaint in the Circuit Court of Mobile County, Alabama (see Doc. 1-2 at 2-7; Doc. 7 at 3-8),
Where, as here, a case is removed from state court, "[t]he burden of establishing subject matter jurisdiction falls on the party invoking removal." Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir. 1999).
"Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Thus, a "`party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties.'" Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1225 (11th Cir. 2017) (quoting Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam)). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519 F.2d 1081, 1082 (5th Cir. 1975) ("The burden of pleading diversity of citizenship is upon the party invoking federal jurisdiction . . ." (citing Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974)).
The complaint alleges that Glass-Wyble was traveling on Interstate 10 in Mississippi when an unknown driver of a pickup truck rear-ended a vehicle traveling behind Glass-Wyble, causing that vehicle "to be propelled into the rear of [Glass-Wyble]'s vehicle." (Doc. 7 at 4). According to the complaint, "[a]s a result of the accident, [Glass-Wyble] was made sick, sore, bruised, and contused[,] suffered injuries about her body, pain from those injuries, and will so suffer in the future." (Id. at 5). Glass-Wyble describes these as "severe personal injuries to her body..." (Id. at 6-7). She also claims that she "has incurred medical bills and expenses, has been forced to undergo painful medical treatment, ... will incur future medical bills and expenses[,] has also suffered severe physical pain and mental anguish related to the injuries she sustained and will suffer future physical pain and mental anguish related to the injuries she sustained." (Id.).
No count demands a sum certain. Count One demands "compensatory damages in an amount in excess of the jurisdictional limits of [the Alabama circuit c]ourt, plus interest and costs[,]" while Count Two contains an otherwise identical demand for "compensatory and punitive damages..." (Doc. 7 at 6-7).
"Where, as here, the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement." Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). "What counts is the amount in controversy at the time of removal. It is less a prediction of how much the plaintiffs are ultimately likely to recover, than it is an estimate of how much will be put at issue during the litigation; in other words, the amount is not discounted by the chance that the plaintiffs will lose on the merits." S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir. 2014) (citation and quotation omitted). "When the complaint does not claim a specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement. If the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed." Williams, 269 F.3d at 1319. Accord Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).
"Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly[,]" and "all doubts about jurisdiction should be resolved in favor of remand to state court." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). Nevertheless, "a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). "[W]hen a removing defendant makes specific factual allegations establishing jurisdiction and can support them (if challenged by the plaintiff or the court) with evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations[, t]hat kind of reasoning is not akin to [impermissible] conjecture, speculation, or star gazing" as to amount in controversy. Id.
Geico reads Count Three of the complaint as demanding the full $300,000 limit of Glass-Wyble's uninsured/underinsured motorist insurance policy. (See Doc. 1-5 [Insurance Policy Declarations Page]). However, the undersigned agrees with Glass-Wyble that, considering her complaint as a whole, she is not in fact demanding the full limit, but is instead merely demanding that Geico cover all damages for which the uninsured/underinsured fictitious defendants would be liable for in Counts One and Two. See Doc. 7 at 5 ("At the time of the accident, Defendant, GEICO, had in full force and effect a policy of insurance covering the Plaintiff under Policy #4480881632. Said insurance policy provided uninsured motorist coverage to the Plaintiff in the event she was involved in a collision with an uninsured/underinsured motorist, whereby GEICO would pay all sums which an insured would be legally entitled to recover from said uninsured/underinsured motorist."), 7 (from Count Three: "There are applicable policies of insurance with GEICO to cover Plaintiff's injuries and damages as set forth hereinabove.")). Accordingly, the amount in controversy must be ascertained from what Glass-Wyble can reasonably be expected t
Geico also submits a letter dated October 25, 2018, from Glass-Wyble's pain management physician to one of Glass-Wyble's attorneys(Doc. 11 at 9-10),
(Doc. 11 at 9-10).
In sum, Geico has failed to meet its burden of proving § 1332(a)'s requisite amount in controversy by a preponderance of the evidence. Therefore, this case is due to be remanded to state court under § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").
Under 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR 72(a)(2)(S), the undersigned
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
The citizenship exception in § 1332(c)(1) for certain "direct actions" against insurers does not apply in this case. Because Glass-Wyble is suing her own insurer, rather than a tortfeasor's insurer, this action is not a "direct action" as contemplated by § 1332(c)(1). See Kong v. Allied Prof'l Ins. Co., 750 F.3d 1295, 1300 (11th Cir. 2014) ("[C]ourts have uniformly defined the term `direct action' to refer to those cases in which a party suffering injuries or damage for which another is legally responsible is entitled to bring suit against the other's liability insurer without joining the insured or first obtaining a judgment against him." (emphasis and quotation marks omitted)).
First, Lowery in no way purported to hold that the foregoing list of what qualifies as an "other paper" was exclusive. Second, and more importantly, this action was not removed under § 1446(b)(3) (providing that, generally, "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy 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") (previously referred to as the "second paragraph" of § 1446(b)). Rather, Geico's notice of removal expressly states, unchallenged by Glass-Wyble, that it was filed "within thirty (30) days after the day [Geico] was served with the Summons and Complaint" (Doc. 1 at 2; see also Doc. 1-1 (letter from Geico's counsel accepting service of process "as of February 1, 2019")), thus availing itself of removal under § 1446(b)(1) ("The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.") (i.e. the "first paragraph" of § 1446(b)), which does not contain a similar "other paper" provision. See Pretka, 608 F.3d at 763 ("Interpreting the language from the second paragraph of § 1446(b) in a case where the removal was under that paragraph is one thing. Implicitly reading that language into the first paragraph of that subsection, where it does not exist, is another thing entirely...We are not persuaded to cut and paste language from one part of § 1446(b) into another part."); id. at 758-59 (explaining that the panel "did not believe that Congress...altered the traditional understanding that defendants could offer their own affidavits or other evidence to establish federal removal jurisdiction" either in enacting § 1446 and in amending it in 1949 to include the "second paragraph" of § 1446(b)); Roe, 613 F.3d at 1061 n.4 ("In § 1446(b) first-paragraph cases, the removing defendant may present additional evidence—business records and affidavits, for instance—to satisfy its jurisdictional burden. See Pretka, 608 F.3d at 753-54.").
