United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs EJS Holding, LLC,
EJK, LLC, and 18211, LLC's (collectively
“Plaintiffs”) Motion to Remand (Doc. 11). The
Motion is fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C.
636(c)(1) (Doc. 13). For the following reasons,
Plaintiffs' Motion will be GRANTED and the case shall be
April 8, 2016, Plaintiffs filed a Petition for Breach of
Contract (Count I) against Defendant The Cincinnati Insurance
Company (“Cincinnati Insurance”) in the Circuit
Court of Saint Louis County, Missouri (Case No. 16SL-CC01319)
for allegedly failing to provide coverage under insurance
policy # ECP/EBA 0204 72 08 for “loss of business
income due to a direct physical loss to property” (Doc.
7 at 1). On August 12, 2016, Plaintiffs filed a First Amended
Petition to add a vexatious refusal to pay claim pursuant to
Missouri Revised Statute § 375.420 (Count II) (Doc. 8 at
2). Relevant to the current Motion, Plaintiffs' First
Amended Petition indicates that “Plaintiffs were
damaged in an amount that has not been indemnified of $75,
000 . . . [i]n addition, this refusal to pay the value of the
damage was vexatious and in bad faith . . . thereby entitling
plaintiffs to the penalties set forth in Mo. Rev. Stat.
§ 375.420, including attorneys' fees”
(Id.). In their prayer for relief, Plaintiffs seek
"this court enter judgment against defendant in an
amount in excess of $25, 000.00 but not more than $75, 000,
pre- and post [sic] judgment interest, costs, and any other
relief this Court deems just and proper”
Insurance removed Plaintiffs' action to this Court on
September 23, 2016, based on diversity jurisdiction. On
October 17, 2016, Plaintiffs filed a Motion to Remand (Doc.
11). In support of the Motion to Remand, Plaintiffs submitted
an April 6, 2016 affidavit signed by Plaintiffs'
representatives stating: “Come now Plaintiffs in the
attached cause of action, and affirm they will not seek more
than $75, 000, exclusive of interests and costs, in that
action” (Doc. 12-1). In its Notice of Removal,
Cincinnati Insurance argues that the amount in controversy
exceeds $75, 000 because Plaintiffs' Amended Petition
indicates that Plaintiffs seek to recover $75, 000 for their
claim of failure to indemnify, plus additional damages based
on a claim for vexatious refusal to pay (Doc. 1 at 2).
Furthermore, in its response to the Motion to Remand,
Cincinnati Insurance asserts that while the original Petition
included the affidavit signed by the Plaintiffs,
Plaintiffs' subsequent First Amended Petition did not
include such an affidavit and, therefore, the affidavit has
been abandoned (Doc. 14 at 5).
courts have original jurisdiction where the parties are
citizens of different states and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). Where a complaint
alleges no specific amount of damages or an amount under the
jurisdictional minimum, the removing party must prove by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000. Bell v. Hershey Co., 557 F.3d 953,
956 (8th Cir. 2009); In re Minnesota Mut. Life Ins. Co.
Sales Practices Litig., 346 F.3d 830, 834 (8th Cir.
2003). “To meet this burden, the defendant must present
some specific facts or evidence.” Harris v.
Transamerica Life Ins. Co., 2014 WL 1316245, at *1 (E.D.
Mo. Apr. 2, 2014) (internal quotation marks omitted). This
evidence may include settlement offers by the plaintiff
exceeding the jurisdictional amount. See McGuire v. J.B.
Hunt Transp., Inc., 2010 WL 2399550, at *3 (E.D. Mo.
June 10, 2014) (“[A]lthough the existence of a
settlement demand does not resolve the [amount in
controversy] issue, it is relevant.”).
the removing party has established by a preponderance of the
evidence that the jurisdictional minimum is satisfied, remand
is only appropriate if the plaintiff can establish to a legal
certainty that the claim is for less than the requisite
amount. Green v. Dial Corp., 2011 WL 5335412, at *1
(E.D. Mo. Nov. 4, 2011) (citing Bell, 557 F.3d at
956). A plaintiff can meet that burden with a “binding
stipulation that limits the plaintiff's recovery of
damages.” Id. (citing Neighbors v.
Muha, 2005 WL 2346968, at *2 (W.D. Mo. Sept. 26, 2005)).
Doubts concerning federal jurisdiction are resolved in favor
of remand. Bell, 557 F.3d at 956.
Insurance has failed to establish by a preponderance of the
evidence that the amount in controversy in this case is more
than $75, 000. On the face of the First Amended Petition, the
amount in controversy is unclear. While Plaintiffs request
“judgment against defendant in an amount in excess of
$25, 000.00 but not more than $75, 000, ” elsewhere in
their First Amended Petition they include language indicating
they may seek $75, 000 “[i]n addition to” the
penalties provided by Missouri Revised Statute §
375.420, which would necessarily exceed $75, 000 (Doc. 8 at
2). When, as is the case here, a petition is unclear
regarding the amount in controversy and the prayer for relief
indicates that plaintiffs seek less than the jurisdictional
amount, the burden rests with the removing party to establish
that the amount in controversy exceeds $75, 000. However,
Cincinnati Insurance does not provide any specific facts or
evidence in support of its claim. Finally, although
Plaintiffs need not establish to a legal certainty that their
claims remain under the amount in controversy threshold in
light of Cincinnati Insurance's failure to meet its
burden, the Court notes that the affidavit attached to the
original Petition would not meet the legal certainty standard
upon the subsequent filing of an amended petition, especially
one, such as here, that includes an additional count and a
potential request for additional relief.
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand
(Doc. 11) is GRANTED.
FURTHER ORDERED that this matter is REMANDED to the Circuit
Court of Saint Louis County, Missouri. A separate order of