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Patricia A. Kunkel, Individually, and As Executor of the Estate of Frederick L. Kunkel A/Ka Fred Kunkel v. Cuna Mutual Insurance Society

November 2, 2011

PATRICIA A. KUNKEL, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE OF FREDERICK L. KUNKEL A/KA FRED KUNKEL, PLAINTIFF,
v.
CUNA MUTUAL INSURANCE SOCIETY, DEFENDANT.



The opinion of the court was delivered by: Norah M Cann King United States Magistrate Judge

Judge Graham

Magistrate Judge King

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on plaintiff's motion to remand premised on lack of subject matter jurisdiction, Motion to Remand Due to Lack of Subject Matter Jurisdiction, Doc. No. 9 ("Motion to Remand"), and defendant's motion to strike an affidavit filed in support of the Motion to Remand, Defendant's Motion to Strike Plaintiff's Counsel['s] Improper Affidavit ("Motion to Strike"), Doc. No. 14. The Motion to Remand was referred to the undersigned for report and recommendation. Order, Doc. No. 15. For the reasons that follow, it is RECOMMENDED that the Motion to Remand be denied. The Motion to Strike is DENIED.

I. BACKGROUND

Plaintiff filed the original Complaint in the Court of Common Pleas for Licking County, Ohio. Complaint for Breach of Insurance Contract and Bad Faith, Doc. No. 3. The Complaint, which includes claims of breach of contract and bad faith, alleges that plaintiff and her husband owned a life insurance policy "which promised to pay the loan debt [to a specific credit union] in the event that either [plaintiff or her husband] died before the loan was paid in full." Id. ¶ 1. Plaintiff alleges that, after her husband died, defendant denied her claim under the policy. Id. ¶ 4. Plaintiff demands judgment "in an amount due under the loan contract as of September 6, 2011, plus for an amount in excess of $25,000.00 for punitive damages . . . plus attorney fees, interest and court costs." Id. p.2. The Complaint does not specify the amount due under the loan contract on the relevant date. Id.

On June 7, 2011, defendant filed a notice of removal premised on diversity jurisdiction. Defendant's Notice of Removal of Cause, Doc. No.

1. The Court ordered the parties to file any "[m]otions or stipulations addressing the parties or pleadings" by August 10, 2011. Preliminary Pretrial Order, Doc. No. 8. On August 10, 2011, plaintiff filed the Motion to Remand. Plaintiff's sole argument in the motion is that the amount in controversy does not exceed $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a) for diversity jurisdiction. Approximately two weeks after plaintiff filed the Motion to Remand, plaintiff filed an affidavit in support of the Motion to Remand. Plaintiffs' [sic] Attorney Affidavit in Support of Motion to Remand to State Court, Doc. No. 11 ("Affidavit"). In that Affidavit, plaintiff's attorney represents, "When this case goes to trial, the Plaintiffs and I will ask for an award of the payoff amount of the Plaintiffs' loan on the date of death of Frederick Kunkel and for punitive damages in no more than an amount of $30,000.00." Id. ¶ 8.

II. DISCUSSION

A. Timeliness

As a preliminary matter, this Court must address defendant's argument that the Motion to Remand is untimely. Defendant, citing 28 U.S.C. § 1447(c), argues briefly that the Motion to Remand should be denied on the ground that plaintiff filed it more than 30 days after removal. Defendant's Opposition to Plaintiff's Motion to Remand ("Opposition to Motion to Remand"), Doc. No. 12, p.1. Although 28 U.S.C. §1447(c) does impose a 30-day deadline on certain motions to remand, the statute expressly excludes from this deadline motions to remand based on a claimed lack of subject matter jurisdiction. Id. In fact, the statute expressly provides that lack of subject matter jurisdiction may be raised at any point before entry of final judgment. Id. ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.") (emphasis added). Defendant's argument regarding timeliness therefore fails.

B. Amount in Controversy and Motion to Strike

District courts may exercise jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different states." 28 U.S.C. § 1332(a). A party who removes a case to federal court bears the burden of establishing "that the allegations in the complaint . . . satisfy the amount-in-controversy requirement." Northup Properties, Inc. v. Chesapeake Appalachia, L.L.C., 567 F.3d 767, 769-70 (6th Cir. 2009). Although a plaintiff is not required to "research, state and prove the plaintiff's claim for damages," Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 572 (6th Cir. 2001), where a plaintiff "seek[s] to recover some unspecified amount that is not self-evidently greater or less than the federal amount-in-controversy requirement, the defendant satisfies its burden when it proves that the amount in controversy more likely than not exceeds $75,000." Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2006) (internal quotation marks omitted). A court must consider punitive damages as part of the amount in controversy "unless it is apparent to a legal certainty that [punitive damages] cannot be recovered." Id. (internal quotation marks omitted).

Here, the Complaint seeks several types of damages: (1) compensatory damages "in an amount due under the loan contract as of September 6, 2011;" (2) punitive damages "in excess of $25,000.00;" and (3) "attorney fees, interest and court costs." Id. The parties agree that the requested compensatory damages claim amounts to approximately $25,000. Opposition to Motion to Remand, p.3; Affidavit, ΒΆ 7. There is no dispute, moreover, that plaintiff's claim of bad faith would support a request for punitive damages. In fact, the only issue in dispute, for purposes of the Motion to Remand, is the amount of punitive damages that might be ...


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