STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before the Court on Plaintiff's Motion to Remand [Doc. 159], filed February 5, 2018. Plaintiff argues that the Court lacks subject matter jurisdiction, and therefore, the case should be remanded to state court. The Court heard some argument on the motion at the Pretrial Conference on February 7, 2018. No response has been filed yet, but none is necessary. The Court finds, based on clear and convincing evidence that at all times relevant to the determination of jurisdiction: Defendant is and has been a citizen of Michigan; Plaintiff Smith and former-Plaintiff Fowler are and have been citizens of Illinois; and the amount in controversy exceeds $75,000. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). The motion will be denied.
Subject matter jurisdiction cannot be waived and thus may be raised by the parties or sua sponte at any time. Louisville & Nashville R.R. Co. v. Motley, 211 U.S. 149, 152 (1908). District courts have original jurisdiction of all civil actions between citizens of different States, as long as the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. § 1332(a). The party asserting federal jurisdiction is required to prove jurisdictional facts by a "preponderance of the evidence[.]" McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008). The relevant time period for proving jurisdictional facts is the time of the filing of the complaint. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71 (2004); Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1239 (10th Cir. 2015). The "time-of-filing" rule requires a determination of "the jurisdictional facts as they are when the complaint is filed, not as they might be upon final judgment." Symes v. Harris, 472 F.3d 754, 758 (10th Cir. 2006). Accordingly, in determining whether a court has diversity jurisdiction, the court must evaluate whether the parties were diverse at the time the complaint was filed. Id. Similarly, the amount in controversy requirement is determined at the time the complaint is filed." Watson v. Blankenship, 20 F.3d 383, 386 (10th Cir. 1994) (emphasis added).
In the Complaint, which was filed November 16, 2015, Plaintiff (and former co-Plaintiff, Mr. Fowler) alleged that they were citizens of New Mexico. [Doc. 1-1] at 1. However, on August 9, 2017, on inquiry by the Court, Plaintiff's counsel retracted that assertion. [Doc. 133] at 1. Plaintiff's counsel alleged that at the time of the underlying accident and currently, Plaintiff Smith and his former co-Plaintiff Fowler were citizens of Illinois. Id.; Audio Recording of Status Conference held on August 9, 2017, Picacho Courtroom at 9:33-34.
As to Defendant, in its Notice of Removal [Doc. 1], filed on December 18, 2015, Defendant alleged that it was a citizen of Michigan. At the Pretrial Conference held on February 7, 2018, defense counsel maintained that Defendant was a citizen of Michigan and submitted documentation establishing its state of incorporation as Michigan and its principal place of business in Lansing, Michigan. See Ex. 1, attached hereto.
Based on clear and convincing evidence, the Court finds that, at the time of the filing of the Complaint, Defendant was a citizen of Michigan. See § 1332(c) (A corporation is deemed to be a citizen of the state in which it is incorporated and in which it maintains its principal place of business). The Court further finds that, at the time of the filing of the Complaint, neither Plaintiff was a citizen of Michigan. At the relevant time period, therefore, the parties were diverse.
In his Motion to Remand, Plaintiff makes two arguments regarding Defendant's citizenship. Neither argument is meritorious. First, Plaintiff argues that Defendant is a citizen "of every state." [Doc. 159] at 5. He bases his argument on the second half of § 1332(c)(1), which reads:
Here, Plaintiffs claims against Defendant for breach of contract, bad faith, and punitive damages are based on allegations of Defendant's own independent wrongs. See [Doc. 1-1] at 1-15. As such, Plaintiff's claims do not fall within the limited scope of the direct action exception.
Second, Plaintiff cites to Roadcap v. Auto-Owners Ins. Co., 2014 U.S. Dist. LEXIS 112059, for the proposition that Defendant is a citizen of the state of Ohio. In Roadcap, the District of Colorado, indeed, found that the defendant was a citizen of Ohio because it had been incorporated in Ohio and had its principal place of business in Lima, Ohio. Id. at *2-3. The court relied on the Notice of Removal, in which the defendant had made such representations. Id. On review, however, of the actual Notice of Removal, attached hereto as Ex. 2, it is clear that the defendant in Roadcap was not Auto-Owners Ins., Co. Initially, in filing her complaint, Ms. Roadcap had incorrectly named Auto-Owners Ins. Co. as the defendant. However, in the Notice of Removal, the defendant explained that naming Auto-Owners Ins. Co. was an error. The correct name was Owners Insurance. Corresponding to Owners Insurance—and not Auto-Owners Ins. Co.—were various exhibits establishing Owners' principal place of business in Lima, Ohio, and state of incorporation as Ohio. Ex. 2 at 2 n.2. Roadcap, therefore, is not relevant to the determination of Defendant's citizenship. Even if Defendant were a citizen of Ohio, the parties would still be diverse. There is no evidence in the record, nor any suggestion by either party, that Plaintiff Smith or former-Plaintiff Fowler is or was a citizen of Ohio.
Plaintiff appears to argue that the amount in controversy does not exceed $75,000, and therefore, the Court lacks diversity jurisdiction. [Doc. 159] at 7. He bases his argument on his settlement demand of $75,000, which he tendered on Sunday, February 4, 2018, one day before filing his Motion to Remand. [Doc. 159-2] at 2. The Court rejects Plaintiff's argument that the amount in controversy is not met.
"[A] plaintiff may not defeat removal by subsequently changing his damage request, because post-removal events cannot deprive a court of jurisdiction once it has attached." Asociación Nacional de Pescadores a Pequeña Escala o Artesañales de Colombia v. Dow Quimica de Colombia S.A., 988 F.2d 559, 566 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). By clear and convincing evidence, the Court finds that at the time of the filing of the Complaint—and indeed still today—the amount in controversy exceeded $75,000. See [Doc. 1] at 3-4 (Defendant's Notice of Removal, alleging facts supporting more than $75,000 in controversy).
The Court finds by a preponderance of the evidence that the parties were completely diverse at the time of the filing of the Complaint and, in fact, have been diverse since. Additionally, based on a preponderance of the evidence, the Court finds that at the time of the filing of the Complaint, and also at the time of removal, that the amount in controversy exceeded $75,000. Accordingly, this Court has jurisdiction over this action. See § 1332.
We, the undersigned Citizens of the State of Michigan, hereby associate ourselves together for the purpose of forming an incorporated company for the transaction of Mutual Insurance in pursuance of Act No. 86 of the Public Acts of Michigan, for the year 1915, entitled "an Act to provide for the organization of Mutual Insurance Companies to do a general Automobile Insurance business; to prescribe their powers and duties and to regulate the same." And do hereby adopt the following:
The name of this Association shall be the Auto-Owners Insurance Company.
The-names and places of residence of the incorporators are as follows:
The principal office for the transaction of its business shall be established at Lansing, Michigan. The Corporate existence of the Company shall be extended and continued in perpetuity from and after the First day of July AD, 1976. The fischal year shall be the calendar year.
The business of the Company shall be managed by its Board of Directors and an Executive Committee within the terms of these articles and by-laws which may be adopted. The number of directors shall not be less than five nor more than twenty-one. One Or more directors shall be elected at each annual meeting by a majority vote of the members present either in person or by proxy; however, the terms of not more than three shall expire at the same time. All directors shall be members of the association either representing personal insurance or as a director or official of a corporation or other legal entity, and shall serve for a term of five years subject to the limitations herein set forth and until their Successors shall be elected. A majority of the members of the Board of Directors shall constitute" a quorum of the Board. The term of office of any director shall automatically expire at any time the Director shall cease to be a member of this Company. All nominations for directors shall be filed with the Executive Committee at least fifteen days prior to, but not more than thirty days preceding each annual policyholders' meeting.
The Executive Committee shall consist of the Chief Executive Officer and four or more directors who shall be appointed by the Chairman of the Board and shall serve until their successors are duly appointed. Three members of the.Executive Committee shall constitute a quorum of that Committee. The Executive Committee shall, subject to the approval of the Board of Directors:
The Executive Committee shall hold meetings at such times as the Chairman of the Board, the Chief Executive Officer or a quorum of the Committee may determine.
The annual policyholders' meeting shall be held on the second Monday of May each year at the principal office of the Company or at such other place within or without the State of Michigan aSmay from time to time be designated by the Board of Directors.
The Board of Directors shall elect from its membership a Chairman of the Board, a President, and an Executive Vice President whose terms of office shall be for five years each. The Board of Directors shall also elect a Secretary and a Treasurer. The Board of Directors shall designate a Chief Executive Officer who shall be an employee of the Company and who shall supervise the carrying out of the policies adopted or approved by the Board. He shall preside at all meetings of the members if present. In his absence, the President or the Executive Vice President shall preside. Any two offices may be held by the same individual except that the offices of president and vice president may not be held by the same person and no officer may execute, acknowledge or verify an instrument in more than one capacity. All vacancies in the offices of the Corporation including membership on the Board of Directors may be filled by the Board of Directors.
The funds necessary to pay current expenses, losses and to create a surplus shall be provided by the sale of policies on the advance premium basis. The Company may issue either assessable or nonassessable policies.
The purpose of this corporation is to write and provide mutual insurance upon automobiles, covering in one policy Fire, Theft, Property Damage, Liability and Collision insurance, together with any other proper form of automobile insurance which may be approved on application to the Insurance Commissioner and also to write and provide any form of mutual insurance authorized by Section 12656 Compiled Laws of Michigan of 1929 or any amendments thereto, including insurance against disabilities which may arise out of bodily injuries, sickness or death by accident, in connection With the use of an automobile; provided, that the maximum single risk shall "not exceed twenty percent of the admitted assets or three times the average risk or one percent of the insurance in force, whichever is the greater, any reinsurance taking effect simultaneously with the policy being deducted in determining such maximum single risk.
This corporation shall have the power to amend these Articles of Incorporation at any Annual or Special Meeting called for that purpose after such notice has been given as provided by laws governing similar corporations.
The Board of Directors shall have power to make, adopt, amend or repeal such By-laws, Rules and Regulations for carrying out the purposes of this Corporation as shall from time to time, in their judgment, become necessary.
Chas. A. Carnahan, Vern V. Moulton, Glenn H. Riley, Fred Russell and Walter W. Russell shall be Members of and constitute the Board of Directors of this Corporation from this date until their successors are elected and qualified at the first Annual Meeting.
At the first Annual Meeting there shall be elected one Director for a term of five years, one Director for a term of four years, one Directorfor a term of three years, one Director for a term of two years, one Director for a term of one year, and at each subsequent Annual Meeting, one Director for a term of five years.
Each policyholder shall be a Member of the Company. Each member of the Company shall be entitled to vote at any annual or special policyholders meeting in person, or by proxy in writing filed by such member. In the event of the dissolution of this Company the property and assets shall be distributed among the policyholders in accordance with the law of the State of Michigan.
The officers and employees of this Corporation shall not be held personally liable for the payment of any taxes, claims, or other liabilities of the Corporation which may be paid by them in good faith.
The Company may conduct the business of insurance in accordance with the provisions of its charter with the descriptive word "Mutual" inserted parenthetically in its corporate name, i.e., Auto-Owners (Mutual) Insurance Company, and further to sue and to be sued in said name.
In witness whereof, we the parties associating, for the purpose of giving legal effect to these Articles, do hereunto subscribe and sign our names this 31st day of May 1916.
Defendant, Owners Insurance Company ("Owners"), by and through its counsel, Karen H. Wheeler and Jesse O. Brant of Levy.Wheeler.Waters, P.C., and pursuant to 28 U.S.C. §§ 1441 and 1446, hereby gives notice of removal to the United States District Court for the District of Colorado of the action brought by Judy Roadcap against Owners in El Paso County District Court, Colorado, case number 2014CV031693, and, as grounds therefor, states as follows:
1. On May 28, 2014, Ms. Roadcap commenced this lawsuit. See Complaint and Jury Demand ("Complaint"), a copy of which is attached hereto as
2. This lawsuit arises from a June 3, 2011 motor vehicle accident and Ms. Roadcap's subsequent claim for underinsured motorist ("UIM") benefits pursuant to an insurance policy issued by Owners. See, e.g.,
3. Service was made on June 9, 2014 through the Colorado Division of Insurance. See Affidavit of Service, a copy of which is attached hereto as
4. Accordingly, this notice is timely pursuant to 28 U.S.C. § 1446(b).
5. 28 U.S.C. § 1441 provides that any civil action "brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).
6. This action is removable because the United States District Court for the District of Colorado has original diversity jurisdiction over this action. See 28 U.S.C. § 1332(a).
7. As discussed below, the parties are citizens of different states and the amount in controversy exceeds $75,000.
8. Ms. Roadcap is a citizen of Colorado. See
9. "For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile." Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983).
10. Owners is an Ohio corporation and its principal place of business is in Lima, Ohio. See Articles of Incorporation of Owners (and Related Documents), a copy of which is attached hereto as
11. A corporation is "deemed to be a citizen of any State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business[.]" 28 U.S.C. § 1332(c)(1).
12. Because Ms. Roadcap is a citizen of Colorado and Owners is a citizen of Ohio, the parties are citizens of different states pursuant to 28 U.S.C. § 1332(c)(1).
13. The amount in controversy exceeds $75,000, exclusive of interest and costs, as reflected by Ms. Roadcap's filings and other information. See 28 U.S.C. § 1446(c)(2)(A)(ii).
14. In January of 2013, Ms. Roadcap made a $100,000 demand for UIM benefits. See
15. "[D]ocuments that demonstrate plaintiff's own estimation of its claim are a proper means of supporting the allegations in the notice of removal, even though they cannot be used to support the ultimate amount of liability." McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008).
16. In response to Ms. Roadcap's $100,000 UIM demand, Owners offered $20,000. See
17. Ms. Roadcap's last demand was for "full UIM limits[,]" i.e., $100,000. See July 17, 2013 McCormick & Murphy Letter, a copy of which is attached hereto as
18. Owners's last offer was for $20,000. See December 18, 2013 Owners Letter, a copy of which is attached as
19. Ms. Roadcap alleges that her claim has "a reasonable value well in excess of the $20,000 offered by [Owners]."
20. In summary, the spread between Ms. Roadcap's demand and Owners's offer is $80,000.
21. As damages, Ms. Roadcap seeks, inter alia, "two times the amount of the unpaid benefits, in addition to her reasonable attorney's fees and Court costs pursuant to C.R.S. § 10-3-1115, 1116." Id. at 3, ¶¶ 19.
22. "A complaint that presents a combination of facts and theories of recovery that may support a claim in excess of $75,000 can support removal." Id. at 955.
23. In addition, Ms. Roadcap has represented, through her counsel, that she is seeking a "monetary judgment over $100,000[,]" exclusive of interest and costs. See District Court Civil (CV) Case Cover Sheet for Initial Pleading of Complaint, Counterclaim, Cross-Claim or Third Party Complaint ("Civil Case Cover Sheet"), a copy of which is attached hereto as
24. While a civil cover sheet, standing alone, may not be dispositive on the issue of amount in controversy (at least under 28 U.S.C. § 1446 as it existed prior to the amendments to the statute that became effective in early 2012), it may be considered. See Baker v. Sears Holding Corp., 557 F.Supp.2d 1208, 1214-15 (D.Colo. 2007); see also Fleming v. USAA Casualty Ins. Co., 2012 WL 652776 at *2 (D.Colo. February 29, 2012)(unpublished).
25. Because the parties are citizens of different states and the amount in controversy exceeds the sum of $75,000, the district court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a).
26. This action is pending in El Paso County District Court, Colorado, which is embraced by the United States District Court for the District of Colorado. See
27. Accordingly, this action is removable from El Paso County District Court to this Court pursuant to 28 U.S.C. § 1441(a).
28. Pursuant to 28 U.S.C. §§ 1441 and 1446, Owners hereby gives notice of removal of the action pending against it in El Paso County District Court, Colorado, case number 2014CV031693, to the United States District Court for the District of Colorado.
29. Attached hereto (listed in chronological order) are copies of the filings in the underlying case, including copies of "all process, pleadings, and orders" served upon Owners:
See 28 U.S.C. § 1446(a); see also D.C.COLO.LCivR 81.1B.
WHEREFORE, Owners respectfully requests, by this Notice, that case number 2014CV031693 in El Paso County District Court, Colorado, be removed to the United States District Court for the District of Colorado.
