United States District Court, D. Montana, Missoula Division
Jeremiah C. Lynch United States Magistrate Judge
Ashley Dewey was injured in an automobile accident in June
2015, and in December 2016 she commenced this insurance
coverage and bad faith action against Defendant Geico
Insurance Agency Incorporated, d/b/a Geico Indemnity Company
(“Geico”) in the Montana Eleventh Judicial
District Court. The First Amended Complaint
(“Complaint”) asserts the following causes of
action: breach of contract (Count I); unfair claims
settlement practices, breach of fiduciary duties, and bad
faith (Count II); common law bad faith (Count III), and;
negligent infliction of emotional distress (Count IV). The
Complaint states that the Geico insurance policy at issue
provided for $25, 000 in underinsured motorist benefits, and
otherwise seeks an unspecified amount of compensatory and
punitive damages together with an award of attorney fees.
March 10, 2017, Geico removed the case to this Court pursuant
to 28 U.S.C. § 1441, based on diversity of citizenship.
Dewey has filed a motion to remand pursuant to 28 U.S.C.
§ 1447(c), on the ground that this Court lacks subject
matter jurisdiction because the amount in controversy does
not exceed the $75, 000 threshold necessary to establish
of a civil action from state court to federal court is
appropriate if the action could have originally been filed in
federal court. 28 U.S.C. § 1441(a); Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987). The
“removal statute is strictly construed, and any doubt
about the right of removal requires resolution in favor of
remand.” Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (2009) (citing Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). There
is a strong presumption against removal jurisdiction, which
means that the defendant always bears of the burden
establishing facts to support jurisdiction. Gaus,
980 F.2d at 566-67. If, at any time, the federal court finds
that it lacks subject matter jurisdiction over a removed
action, it must remand the case to state court. 28 U.S.C.
removal notice must include a “short and plain
statement of the grounds for removal.” 28 U.S.C. §
1446(a). Geico's notice of removal cites diversity
jurisdiction under 28 U.S.C. § 1332(c) as the basis for
removing Dewey's Complaint. For the Court to have
diversity jurisdiction, all plaintiffs must be of different
citizenship than all defendants, and the amount in
controversy must exceed $75, 000. See 28 U.S.C. § 1332.
It is undisputed that the parties are completely diverse. The
only issue is whether Geico has met its burden of
demonstrating that the amount in controversy exceeds $75,
as here, the plaintiff seeks a money judgment but state law
does not permit demand for a specific sum or permits recovery
of damages in excess of the amount demanded, the removing
defendant need only make a “plausible allegation that
the amount in controversy exceeds the jurisdictional
threshold.” LaCross v. Knight Transp. Inc.,
775 F.3d 1200, 1202 (9th Cir. 2015). Absent a
challenge to the notice of removal, the court may accept a
good faith allegation that the amount in controversy exceeds
the requisite $75, 000. See 14 A.A. Charles Alan
Wright & Arthur Miller, Federal Practice and
Procedure § 3702.3 (4th ed. 2012).
defendant's assertion of the amount in controversy is
challenged, however, “both sides submit proof and the
court decides, by a preponderance of the evidence, whether
the amount-in-controversy requirement has been
satisfied.” Dart Cherokee Basin Operating Co. v.
Owens, 135 S.Ct. 547, 554 (2014). The court may order
jurisdictional discovery to determine whether the party
seeking removal has met its burden of establishing the amount
in controversy. Abrego Abrego v. The Dow Chem. Co.,
443 F.3d 676, 691 (9th Cir. 2006). Thus,
“‘the court may consider facts in the removal
petition, and may require parties to submit-summary
judgment-type evidence relevant to the amount in controversy
at the time of removal'.” Vangsnes v. Liberty
Mutual Group, Inc., 2013 WL 2255901 *4 (D. Mont. May 22,
2013) (quoting Singer v. State Farm Mut. Auto. Ins.
Co., 116 F.3d 373, 377 (9th Cir. 1997)).
Ultimately, the court must make findings of jurisdictional
facts using a preponderance of the evidence standard.
Abrego Abrego, 443 F.3d at 391; see 28 U.S.C. §
Dewey's Complaint alleges that the Geico insurance policy
at issue provided for $25, 000 in underinsured motorist
benefits, and otherwise seeks an unspecified amount of
compensatory and punitive damages together with an award of
attorney fees. A request for punitive damages may be
considered in determining the amount in controversy.
Gibson v. Chrysler Corporation, 261 F.3d 927, 945
(9th Cir. 2001). A request for attorney's fees
may also be considered as part of the amount in controversy
if the substantive law of the forum state allows them to be
recovered. Guglielmino v. McKee Foods Corp., 506
F.3d 696, 700 (9th Cir. 2007). Geico thus alleges
based on the face of the Complaint that the amount in
controversy exceeds the $75, 000 jurisdictional threshold.
because Dewey challenges that assertion in his motion to
remand, and it is not facially apparent from the Complaint
whether Dewey is seeking damages in excess of $75, 000, the
Court will allow the parties to engage in limited
jurisdictional discovery for purposes of establishing the
amount in controversy. Likewise, Dewey may clarify the amount
in controversy by filing an affidavit stating that she will
not seek to recover damages in excess of $75, 000 inclusive
of compensatory damages, punitive damages, and attorney fees.
See Plentywood Hardware, Inc. v. Liberty Mutual Group,
Inc., 2015 WL 5692800 *3 (D. Mont. Sept. 28 2015)
(“A federal court can require a plaintiff to file an
affidavit or stipulation stating that he will not seek to
recover damages in excess of $75, 000 as a pre-condition for
remand); Sherman v. Nationwide Mutual Ins. Co., 2013
WL 550265 *2 (D. Mont. Jan. 15, 2013).
reasons set forth above, IT IS ORDERED that the parties may
engage in limited jurisdictional discovery with respect to
the amount placed in controversy by the Complaint. The
discovery may consist of requests for admissions or
interrogatories which shall be served on before April 21,
2017. Responses to any discovery requests propagated pursuant
to this order shall be served on or before May 1, 2017. If
Dewey chooses to file an affidavit clarifying the amount in
controversy, she must do so on or before April 17, 2017.
FURTHER ORDERED that unless the parties reach an agreement
regarding the amount placed in controversy by the Complaint,
they shall, on or before May 12, 2017, file ...