Opinion
Civil Action No. 08-cv-01496-MSK-KLM.
November 7, 2008
ORDER GRANTING MOTION TO REMAND
THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand to State Court ( #11), to which the Defendants responded ( #15) and the Plaintiffs replied ( #17, #29). Having considered the same, the Court
FINDS and CONCLUDES that:
The Plaintiffs commenced this action in the Boulder County District Court. Each Plaintiff claims that he or she was not offered enhanced personal injury protection (PIP) coverage from American Family Mutual Insurance Company under the Colorado Auto Accident Reparations Act. In their Complaint, the Plaintiffs do not request any particular monetary relief. However, they seek to recover enhanced PIP benefits for injuries they sustained in separate motor vehicle accidents, unspecified damages, interest, and treble damages. Two of the Defendants (Bonnianne Walker and Ellen Fisher) are Colorado residents.
In their Notice of Removal, the Defendants assert that this Court can exercise jurisdiction based upon diversity pursuant to 28 U.S.C. § 1332. With regard to the Colorado Defendants, they contend that such Defendants were fraudulently joined in order to destroy diversity jurisdiction. They also contend that the requisite amount in controversy is established by the nature of the Plaintiffs' claims, the Plaintiffs' general requests for attorney fees, noneconomic damages and treble damages, and the Plaintiffs' election in the mandatory Colorado Civil Cover Sheet stating: "This party is seeking a monetary judgment for more than $100,000 against another party, including any attorney fees, penalties or punitive damages, but excluding interest and costs[.]"
The Plaintiffs move to remand the case to state court. They contend that the parties are not completely diverse, and that the Defendants have not demonstrated that the amount in controversy exceeds $75,000. The Defendants respond that the two Colorado Defendants were fraudulently joined, and that the Plaintiffs' Civil Cover Sheet demonstrates that the amount in controversy exceeds the jurisdictional threshold.
It is not necessary to address the fraudulent joinder issue, because neither the Complaint nor the Notice of Removal demonstrates that the amount in controversy exceeds $75,000. The Plaintiffs' allegations shed no light on what PIP benefits have already been paid, what PIP benefits remain unpaid, or what amount of money they hope to recover in this litigation. The Notice of Removal makes no demonstration of this, either. Cf. McPhail v. Deere Co., 529 F.3d 947, 952-54 (10th Cir. 2008) (addressing how such demonstration can be made).
The Defendants have relied upon the Plaintiffs' election in the Civil Cover Sheet to demonstrate the requisite amount in controversy. However, in Baker v. Sears Holding Corp., 2007 WL 2908434 (D.Colo. 2007) (slip op.) (copy attached hereto), this Court explained why such election cannot demonstrate the jurisdictional amount. In their Notice of Removal, the Defendants acknowledge the Baker opinion, but confess that they removed the case at this juncture to avoid "the risk, given the split in authority among the judges of the district concerning the effect of the Civil Cover Sheet," that removal would be barred at a later time.
There has been an insufficient showing of the requisite amount in controversy to establish diversity jurisdiction. Accordingly, the action must be remanded to the State Court. See 28 U.S.C. § 1447(c).
IT IS THEREFORE ORDERED that the Plaintiffs' Motion to Remand to State Court (#11) is GRANTED. This action is REMANDED to the Boulder County District Court.