Opinion
CASE NO. 3:07-CV-980-WKW [WO].
March 9, 2009
MEMORANDUM OPINION AND ORDER
On December 2, 2008, Plaintiffs' Joint Motion to Dismiss with Prejudice (Doc. # 32) was granted and Defendant Douglas A. Geist ("Geist") was dismissed from the case. (Doc. # 34.) Plaintiffs then filed a second remand motion. (Mot. Remand (Doc. # 37).) Plaintiffs argue that subject matter jurisdiction no longer exists because the only remaining Defendant is State Farm Mutual Automobile Insurance Company ("State Farm"), the only remaining claim is its contractual obligation to pay underinsured motorist coverage, and the policy limit of that coverage totals $60,000. (Mot. 4.) Thus, Plaintiffs argue, there is no longer diversity jurisdiction under 28 U.S.C. § 1332, which requires an amount in controversy in excess of $75,000. (Mot. 4.) State Farm has not filed a response to Plaintiffs' motion. For the following reasons, the motion to remand (Doc. # 37) is due to be denied.
At the time of removal, diversity jurisdiction existed over this case. In an earlier Memorandum Opinion and Order ("Opinion") (Op. (Doc. # 18)), Plaintiffs' first motion to remand (Doc. # 8) was denied because diversity jurisdiction existed at the time of removal. (Op. 5.) The Opinion only addresses whether the parties were completely diverse, but with their Notice of Removal, Defendants filed a letter Plaintiffs' counsel sent demanding $500,000 for Plaintiffs' case. (Removal Notice ¶ 14 Ex. B (Doc. # 1).) A demand letter received by a defendant from a plaintiff articulating a sufficient amount in controversy for diversity jurisdiction can be the basis for removing a case. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1212 n. 62 (11th Cir. 2007), cert. denied, 128 S. Ct. 2877 (2008). Thus, at the time of removal, there was diversity jurisdiction to hear this case. Plaintiffs argue, however, that because Geist has been dismissed by the case, their damages are capped at $60,000, and therefore, diversity jurisdiction no longer exists.
The letter specifically stated: "In the event you are interested in paying $500,000.00, or your policy limits, prior to engaging your attorneys please contact the undersigned [Plaintiffs' attorney]." The amount of the policy limits is irrelevant as long as Plaintiffs' counsel demanded as one form of payment as much as $500,000.
When a motion to remand is filed more than thirty days after removal and challenges subject matter jurisdiction, "[a] court may look to any relevant information the parties may present, up until the time of the challenge to jurisdiction." Lowery, 483 F.3d at 1213 n. 64. The demand letter in this case was filed with the Notice of Removal.
Even assuming damages are capped at $60,000, the fact that damages are now under the threshold jurisdictional amount does not divest the court of jurisdiction. "[E]vents occurring after removal which may reduce the damages recoverable below the amount in controversy requirement do not oust the district court's jurisdiction." Poore v. American-Amicable Life Ins. Co. of Tex., 218 F.3d 1287, 1291 (11th Cir. 2000), overruled on other grounds, Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007) (per curiam) (" Poore is overruled to the extent we held that a remand for lack of subject matter jurisdiction pursuant to [28 U.S.C.] § 1447(c) is reviewable if it is based on a post-removal amendment to the complaint."). Joining other circuits, Poore held that "the amendments to § 1447(c) did not alter the fact that, in this case, the district court must determine whether it had subject matter jurisdiction at the time of removal." Id. at 1290-91 (emphasis added). See Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) ("[The court] note[s] that for purposes of this challenge to the subject matter jurisdiction of the district court, the critical time is the date of removal. . . . See Poore[, 218 F.3d at] 1289-91 []. If jurisdiction was proper at that date, subsequent events, even the loss of the required amount in controversy, will not operate to divest the court of jurisdiction."); see also Freeport-McMoran, Inc. v. K N Energy, Inc., 498 U.S. 426, 427 (1991) (per curiam) (stating in a non-removal case that the Court "ha[s] consistently held that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events"); Harris v. Garner, 216 F.3d 970, 983-84 (11th Cir. 2000) (noting that it is "well established" that changes to a party's citizenship after jurisdiction is established do not divest the court of jurisdiction).
Accordingly, because diversity jurisdiction was established at the time of removal, it is ORDERED that Plaintiffs' Second Motion to Remand (Doc. # 37) 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 CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 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. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) 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 , 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." , , (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. (c). (b) 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. (b). , , (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. , , , , , (1988); , , (11th Cir. 1998). (c) 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) The certification specified in (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) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 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. Special filing provisions for inmates are discussed below. (b) "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) 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) 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) 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 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. 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. (a)(4).