United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Alverine Thames claims she was injured when uninsured
motorist Toni Elvir negligently rear-ended her vehicle with
his own. Thames alleges that she had an automobile insurance
policy in effect at the time of the collision which included
uninsured motorist coverage with defendant American Family
Mutual Insurance Company. She further alleges that despite
her demands, American Family failed to make any payments
under its policy. Thames originally filed this personal
injury and uninsured motorist case against Elvir and American
Family in Missouri state court. American Family removed the
case to this court citing federal diversity jurisdiction
under 28 U.S.C § 1332. Although the petition states both
Thames and Elvir are Missouri residents, American Family
argues the evidence shows the parties are diverse as Elvir is
an Illinois citizen. The matter is before me now on
Thames's motion to remand, in which she claims: 1)
American Family's removal was untimely, and, 2) there is
no federal diversity jurisdiction as American Family failed
to show Elvir was a citizen of Illinois. I conclude that
although the case was timely removed, American Family did not
meet its burden to establish diversity of citizenship by a
preponderance of the evidence. I will therefore grant
Thames's motion to remand.
defendant normally may remove an action from state court to
federal court if the federal court would have had original
jurisdiction over the action. 28 U.S.C. §1441. A federal
court has diversity jurisdiction where the matter in
controversy exceeds $75, 000 and is between citizens of
different states. 28 U.S.C. § 1332(a). A defendant
seeking removal has the burden of establishing diversity
jurisdiction. Bell v. Hershey Co., 557 F.3d 953, 956
(8th Cir. 2009). A defendant meets that burden by
proving diversity of citizenship and amount in controversy by
a “preponderance of the evidence.” In re
Prempro Prods. Liab. Litig., 591 F.3d 613, 620
(8th Cir. 2010); Bell, 557 F.3d at 956.
When a case is removed, diversity of citizenship must exist
when the state petition is filed and when the petition for
removal is filed. Knudson v. System Painters, Inc.,
634 F.3d 968, 975 (8th Cir. 2011). Once the
defendant satisfies the burden, remand is only appropriate if
the plaintiff can establish that the requirements for
diversity jurisdiction have not been met to a “legal
certainty.” Bell, 557 F.3d at 956. All doubts
about federal jurisdiction should be resolved in favor of
remand to state court. Hubbard v. Federated Mut. Ins.
Co., 799 F.3d 1224, 1227 (8th Cir. 2015).
considering the parties' arguments regarding diversity, I
will briefly address Thames's contention that American
Family did not timely remove the case. The notice of removal
of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based. 28 U.S.C. 1446(b). Here, the summons and petition were
served on January 26, 2017, the 30-day deadline fell on
Saturday, January 25, 2017, and the action was removed 2 days
later on Monday, February 27, 2017. As Rule 6(a)(1)(C)
states, when computing time, you “include the last day
of the period, but if the last day is a Saturday, …
the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.”
Thus, here, the period continued to run through Monday,
February 27, 2017, when the action was removed. Accordingly,
American Family's removal was timely.
will consider Thames's argument that remand is required
as American Family failed to establish diversity of
citizenship. In its notice of removal, American Family
contends the evidence shows Elvir is a citizen of Illinois
and not Missouri. At the time of the 2015 collision, Elvir
provided the investigating officer with a Missouri address.
However, the St. Louis City Sheriff was unable to serve Elvir
at this address, and the summons indicated he had moved.
American Family's private investigator was unable to
ascertain where Elvir currently resides or lived at the time
the lawsuit was filed. Accordingly, American Family contends
Elvir's Missouri address was temporary, and his
citizenship should be based on the 2012 registration of
Elvir's vehicle in Illinois.
considering the evidence before me, I must ascertain whether
American Family, as the removing party, met its burden of
proof to establish diversity jurisdiction by a preponderance
of the evidence. In re Prempro Prods. Liab. Litig.,
591 F.3d at 620. Although Elvir's vehicle registration
provides evidence of Illinois citizenship, Elvir's
statement to the police that he lived at an address in
Missouri equally provides evidence of Missouri citizenship. I
cannot conclude, therefore, that American Family has shown
Elvir was an Illinois citizen by a preponderance of the
evidence. Moreover, given the conflicting evidence in this
case, I must resolve all doubt in favor of remand.
Hubbard, 799 F.3d at 1227.
IT IS HEREBY ORDERED that plaintiffs motion to remand [#9] is
FURTHER ORDERED that this case is REMANDED to the Circuit
Court of the City of St/ Louis, State of Missouri, from which
it was removed.
 American Family is alleged to be a
citizen of ...