Opinion
No. CIV 01-326 BB/WWD
July 30, 2001
Counsel for Plaintiff: Douglas Booth, Santa Fe, NM.
Counsel for Defendant Workmens: Jeffrey E. Jones, Miller Stratvert Torgerson, Santa Fe, NM.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiffs motion to remand [#5] based on a lack of evidence of the requisite jurisdictional amount, and the Court having considered all the submissions of the parties and being otherwise apprised, finds that if Plaintiff is willing to stipulate she will not seek or recover in excess of $75,000, the case will be remanded to state court.
Facts and Argument
On February 14, 2001, Plaintiff filed her complaint for declaratory judgment and damages in the First Judicial District Court for the State of New Mexico. Defendant Workmens Insurance Company (Workmens) filed a notice of removal in this Court on March 23, 2001.
Defendant Sigfriedo Montano is apparently a Mexican national who has not been served.
Workmens asserts that this matter exceeds the sum or value of $75,000, but failed to present any underlying facts. Notice of Removal at 2. Consistent with New Mexico pleading practice, the complaint does not allege any dollar amount.
See Rule 1-010(B) NMRA.
To its response to Plaintiffs remand motion, Workmens attached two letters from Plaintiffs attorney upon which it relies to support its contention Plaintiffs claim is worth in excess of $75,000. In the letter of January 8, 2001, Plaintiffs counsel restates our policy limits demand for $75,000. In the January 16 letter, Plaintiffs counsel indicates Ms. Parras medical billings are now approaching $25,000 and we believe the case to be worth $250,000. Counsel also again reiterates his demand that Workmens pay the policy limits of $75,000, at this time. Defense counsel further notes that in addition to the $75,000 demand, Plaintiff has additionally sought attorneys fees under NMSA 1978 § 39-2-1 (Repl. Pamp. 1991).
In response, Plaintiffs counsel notes Workmens clearly does not believe the case is worth more than $75,000 because their highest offer to date is $5,000. Plaintiffs counsel has also attached a letter written to defense counsel in which he stated my client hereby waives her claim to any and all amounts in excess of the policy limits of $75,000" and requested defense counsel stipulate to state jurisdiction.
Discussion
When a diversity case is removed to federal court, the removing party has the burden of proving the required jurisdictional threshold. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188-9 (1936); Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999). If the state court complaint is silent, then, the defendant bears the burden of introducing sufficient facts to prove the claim actually satisfies federal jurisdiction. Meritcare, supra; Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994). There is a strong presumption on removal plaintiff is not seeking enough to satisfy federal diversity jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-9 (1938); Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992).
In making the determination required, the Court may consider facts alleged in the notice of removal, judicial admissions made by the plaintiffs non-sworn letters submitted to the court or other summary judgment type evidence that may reveal that the amount in controversy requirement is satisfied. 16 MOORES FED. PRACTICE § 107.14[2][g] at 107-70 (Benders 3d ed.). Since there is a presumption in favor of the forum selected by Plaintiff, a disavowal of any intent to collect more than the federal jurisdictional threshold, in the absence of strong proof to the contrary, is generally treated as dispositive. Asociacion Nacional de Pescadores a Pequena Escala v. Dow Quimica, 988 F.2d 559, 564 (5th Cir. 1993); Gwyn v. Wal-Mart Stores, Inc., 955 F. Supp. 44, 46 (M.D.N.C. 1996). Defendant has adduced some evidence, but is effectively countered by Plaintiffs evidence. Therefore, if Plaintiffs counsel files an affidavit executed by Plaintiff that she is not seeking and will not accept more than $75,000, the motion to remand will be granted. See Matney v. Wenger Corp., 957 F. Supp. 942 (S.D. Tex. 1997); Cotton States Mut. Ins. Co. v. Peacock, 949 F. Supp. 823 (M.D.Ala. 1996).
Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979); cf. Shamrock Oil Gas v. Sheets, 313 U.S. 100 (1941) (defendants right to remove is not equal to plaintiffs selection of forum).
ORDER
If, within twenty (20) days of the entry of this order, Plaintiff files a stipulation indicating she is not seeking and will not accept more than $75,000 in damages, Plaintiffs Motion to Remand is GRANTED; otherwise, the motion will be DENIED.
Dated at Albuquerque this 30th day of July, 2001.