United States District Court, D. Vermont
ENTRY ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND DENYING DEFENDANT'S MOTION FOR COSTS AND FEES INCURRED (Docs. 69, 72)
CHRISTINA REISS, Chief District Judge.
Pending before the court is Plaintiff Teresa Gade's motion to remand (Doc. 69) and Defendant State Farm Mutual Automobile Insurance Company's motion for costs and fees incurred (Doc. 72). Plaintiff seeks remand of this case to the Vermont Superior Court, arguing that Defendant cannot satisfy its burden to show the amount in controversy exceeds $75, 000 exclusive of interests and costs, as required by 28 U.S.C. § 1332(a) for diversity jurisdiction. Defendant opposes the motion, contending that Plaintiffs motion is untimely and that there is no doubt that the amount in controversy exceeds $75, 000. Defendant requests that it be awarded the costs and fees it incurred in opposing the motion to remand, which it contends is meritless.
Todd D. Schlossberg, Esq. represents Plaintiff. Richard H. Wadhams, Jr., Esq. and Robin O. Cooley, Esq. represent Defendant. The court took this matter under advisement on April 15, 2015.
I. Factual and Procedural Background.
Plaintiff brought this action against Defendant, her automobile insurance carrier, for breach of contract and bad faith denial of insurance coverage based on claims she made for injuries she allegedly sustained in two automobile accidents. Plaintiff asserts that she is entitled to uninsured motorist benefits for a January 3, 2008 collision, involving a motorist who left the scene of the accident. She alleges that as a result of the 2008 collision, she sustained physical injuries to her spine for which she underwent surgery, and she suffered pain and loss of enjoyment of life, which she continues to experience. Plaintiff alleges that she was involved in another accident on May 21, 2009, for which she obtained a settlement of $100, 000. She alleges that she continues to suffer pain and loss of enjoyment of life as a result of this second accident.
On December 31, 2013, Plaintiff filed this action in the Vermont Superior Court, Chittenden Unit. On March 13, 2014, Defendant removed the action to this court under 28 U.S.C. §§ 1332(a), 1441, 1446(b), alleging diversity jurisdiction. On March 17, 2014, Plaintiff filed a motion to remand, arguing that Defendant could not demonstrate that the amount in controversy exceeds $75, 000. She, however, withdrew the motion on March 20, 2014.
II. Conclusions of Law and Analysis.
A. Whether Plaintiff's Motion to Remand is Timely.
Defendant first asserts that Plaintiffs motion is untimely because she filed it more than thirty days after Defendant filed the notice of removal. "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). In considering a case where "[t]he crux of defendants' waiver claim is that by failing to raise the sufficiency of the amount in controversy in the district court in a timely motion to remand pursuant to section 1447(c), " the Second Circuit ruled:
the subject matter jurisdiction of the federal courts is too basic a concern to the judicial system to be left to the whims and tactical concerns of the litigants. Litigants, therefore, cannot waive subject matter jurisdiction by express consent, conduct, or estoppel because they fail to challenge jurisdiction early in the proceedings.
United Food & Commercial Workers Union, Loca 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 303 (2d Cir. 1994) (citation and internal quotation marks omitted). Accordingly, Plaintiffs motion to remand is not untimely under 28 U.S.C. § 1447(c).
B. Whether Plaintiff is Entitled to a Remand.
Defendant bears the burden of demonstrating that the amount in controversy exceeds $75, 000. See Sec. Plans, Inc. v. CUNA Mut. Ins. Soc., 769 F.3d 807, 814 n.5 (2d Cir. 2014) ("A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a reasonable probability that the claim is in excess of the statutory jurisdictional amount.") (quoting Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003)). "This burden is hardly onerous, however, for we recognize a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Id. (quoting Scherer, 347 F.3d at 397).
"When a plaintiff invokes federal-court jurisdiction, the plaintiffs amount-in-controversy allegation is accepted if made in good faith." Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 553 (2014). "Similarly, when a defendant seeks federal-court adjudication, the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court." Id. "If the plaintiff contests the defendant's allegation, ... both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Id. at 553-54. "[F]ederal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, ...