United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Douglas Knight's
("Knight") Motion to Quash Summons Service and to
Dismiss (ECF No. 9). Plaintiff Nationwide Insurance Company
of America ("Nationwide") has filed a Response in
Opposition (ECF No. 10) and Knight filed a Response to
Plaintiffs Suggestions in Opposition to Defendant's
Motion to Quash Summons Service and Dismiss (ECF No. 11) and
a Motion to Supplement his Reply to Nationwide (ECF No. 12).
September 21, 2014, Defendant Douglas Knight
("Knight") was involved in a motor-vehicle accident
with Danielle Ely ("Ely"). (ECF No. 9-2). On August
31, 2016, Nationwide Insurance Co. of America
("Nationwide") filed a Complaint for Declaratory
Judgment in Federal Court in accordance with Fed.R.Civ.P. 57
and 28 U.S.C. § 2201. (ECF No. 1). Nationwide seeks
interpretation of an insurance policy, Policy Number
PPNM0037888462 ("the Policy"), Nationwide issued to
Knight and for declaratory judgment defining Nationwide's
rights and obligations to Knight. (ECF No. 1).
Nationwide's claim arises from Knight's claim for
Uninsured Motorist ("UIM") coverage pursuant to the
Policy for alleged injuries occurring in the car accident on
September 21, 2014. (ECF No. 1). Knight settled with the
Ely's insurance carrier, Farmers Insurance Company. (ECF
No. 1). Nationwide seeks a declaration that it does not owe
UIM coverage for Knight because Ely's vehicle does not
fall within the definition of an "uninsured motor
vehicle". (ECF No. 1).
September 21, 2016, Knight filed a Petition seeking
Declaratory Judgment in the 16fhCircuit Court of
Jackson County. (ECF No. 9-2). In the Circuit Court, Knight
sought damages for Breach of Contract, Vexatious Refusal, and
Declaratory Judgment. (ECF No. 9-2), In Knight's Petition
in the Circuit Court, Knight alleges to be involved in the
same motor-vehicle accident on September 21, 2014, where
Ely's vehicle struck Knight's vehicle. (ECF No. 9-2).
Knight alleges Ely was arrested and charged with driving
under the influence. (ECF No. 9-2). Knight claims Ely's
insurance carrier offered their policy limit of $100, 000 in
settling Knight's claim against Ely, which Nationwide
granted Knight permission to accept for bodily injuries on
May 31, 2016. (ECF No. 9-2). In that same state court action,
Knight alleges he purchase $100, 000 of UIM coverage benefits
from Nationwide. (ECF No. 9-2). Knight asserts Nationwide
denied Knight's UIM claim because the policy did not
provide for $100, 000 in UIM coverage and the bodily injury
policy limits for Fanners was $100, 000. (ECF No. 9-2).
October 24, 2016, the Circuit Court dismissed the claims for
failure to prosecute pursuant to 16th Circuit Rule 37.4.1.
(ECF No. 10-1). On November 8, 2016, Knight filed a Motion to
Set Aside Dismissal of his original Petition in the Circuit
Court, (ECF No. 11-1). On November 10, 2016, the Circuit
Court granted Knight's Motion to Set Aside Dismissal and
re-instituted the case from the date of filing the original
Petition. (ECF No. 12-1).
October 26, 2016, Knight filed a Motion to Quash Summons
Service and to Dismiss in this Court. (ECF No. 9). Knight
seeks to dismiss Nationwide's case in this Court because
Knight has a pending Declaratory Judgment proceeding in the
Circuit Court and the amount in controversy does not exceed
$75, 000. (ECF No. 9).
Motion to Dismiss
basis of Knight's Motion to Quash Summons Service and to
Dismiss (ECF No. 9) is that Knight was not personally served
with a copy of the summons for this case and, as a result,
this Court lacks personal jurisdiction. In his affidavit,
Knight states that he was away from his house on September 4,
2016 between 11:00 a.m. and 9:00 p.m., when he was supposedly
served with the summons for this case. (ECF No. 9-1).
Additionally, Knight argues that this Court does not have
subject matter jurisdiction because the amount in controversy
does not exceed $75, 000. Knight has executed an affidavit
attesting that he seeks less than $75, 000 in damages from
his underinsured motorist coverage with Nationwide. Finally,
Knight noted that he filed a pending Missouri State Court
action against Nationwide that alleges a breach of contract,
vexatious refusal to pay and seeks a declaratory judgment on
the same issues which Nationwide asserts in its petition for
declaratory judgment in this matter. (ECF No. 9 (citing
Circuit Court of Jackson County, State of Missouri, Case No.
1616-CV22867)). Knight asks this Court to allow the state
court in Jackson County to resolve the issues raised by
Nationwide in this matter and to provide a continuous avenue
for Knight to pursue his claims of breach of contract and
vexatious refusal against Nationwide. (ECF No. 9, ¶l 1).
Knight also notes that his Motion to Set Aside Dismissal of
his state court action was granted on November 11, 2016. (ECF
response, Nationwide argues that the summons was properly
served in this case. Nationwide claims that it has made the
prima facie showing that the Court's personal
jurisdiction is properly exercised based upon the affidavit
signed by the process server in this case. Judith Gamer, a
special process server, filed an affidavit saying she
personally served Douglas Knight at his residence. (ECFNo.
10-2). Moreover, even if service were ineffective, Nationwide
contends that dismissal is not required; rather, the Court
has discretion to either dismiss this action or quash service
but retain the case. (ECF No. 10 at 3). In addition,
Nationwide maintains that the amount in controversy has been
met because this case was originally filed in August 31,
2016, and Knight did not file the affidavit purporting to
reduce the amount in controversy to less than $75, 000 until
October 26, 2016. (ECFNo. 10). Finally, Nationwide asserts
that the pending state court case cited in Knight's
Motion was dismissed by the court, and no state court case
remains pending. (ECF No. 10 at 2).
defendant must have been properly served pursuant to Rule 4
of the Federal Rules of Civil Procedure in order to be held
accountable for failing to plead or otherwise defend."
T-Mobile USA, Inc. v. Yoak, No. 4:10CV02244 AGF,
2011 WL 1257923, at *1 (E.D. Mo. Apr. 4, 2011). "The
burden lies with the plaintiff to demonstrate sufficient
process and service; when process or service is challenged,
the plaintiff must make a prima facie showing the court's
personal jurisdiction is properly exercised."
T-Mobile USA, Inc. v. Yoak, No. 4:10CV02244 AGF,
2011 WL 1257923, at *1 (E.D. Mo. Apr. 4, 2011) (quoting
Adkins v. Option One Mortg. Corp., No.2009 WL 35181,
at *5 (W.D.Mo.2009)). The Eighth Circuit has held that a
signed return of service constitutes prima facie evidence of
valid service, "which can be overcome only by strong and
convincing evidence." Greater St. Louis Const.
Laborers Welfare Fund v. Little, 182 F.R.D. 592
(E.D.Mo.1998) (quoting Hicklin v. Edwards, 226 F.2d
410, 414 (8th Cir.1955)); Allstate Ins. Co. v. Bass,
No. 4:11-CV-1910-JAR, 2014 WL 2765286, at *2 (E.D. Mo. June
18, 2014). Here, both sides have provided signed affidavits
to support their positions. The Court holds that Knight's
affidavit alone, however, fails to rebut the presumption of
valid service, Knight indicates that he was at work when the
process server supposedly served him with the Complaint.
Knight, however, failed to provide any strong and convincing
evidence, such as an affidavit from his employer or co-worker
to verify his statement. As a result, the Court denies
Knight's Motion to Dismiss based upon ineffective service
Court also holds that this Court has subject matter
jurisdiction. The parties agree that complete diversity of
citizenship exists. However, Knight challenges
Nationwide's assertion that the amount-in-controversy
requirement of 28 U.S.C. § 1332 is satisfied. The Court
will not dismiss this action based upon the belated filing of
Knight's affidavit stating that his claim for payment of
underinsurance motorist benefits from Nationwide does not
exceed $75, 000. See ECF No. 9-1. "The basis
for removal jurisdiction is determined at the time the
complaint is filed rather than at the time when the notice of
removal is filed; therefore, post-removal stipulations and
amendments do not generally defeat federal jurisdiction if
the amount-in-controversy was satisfied at the time the
complaint was filed." Neighbors v. Muha, No.
05-472-CV-W-GAF, 2005 WL 2346968, at *3 (W.D. Mo. Sept. 26,
2005); Hahne v. Liberty Mut. Grp., 40 F.Supp.2d
1087, 1090 (N.D. Iowa 1999) (citing St. Paul Mercury
Indent Co. v. Red Cab Co., 303 U.S. 283, 293
(1938))("Generally, such a post-removal stipulation
limiting the amount in controversy-like a post-removal
amendment-would not defeat removal jurisdiction.").
Previously, Knight made a claim for payment to Nationwide for
the full policy limits of $100, 000. Thus, the Court holds
that Knight's post-removal attempt to limit his damages
is insufficient to divest this Court of subject matter
jurisdiction. The Court denies Knight's motion to dismiss
on this basis.
the Court will not dismiss this case based upon the
corresponding state court filing. The Court notes that the
state court action was recently removed to the Western
District of Missouri. See 4:16cvl315 FJG (W.D. Mo.).
While Knight filed a Motion to Remand, the Motion to Remand
has not been ruled upon. Rather, the Western District of
Missouri has issued a Case Management Order, Given the
current postures of these cases, the Court finds that
dismissal of the present action is not appropriate based upon
the now-removed state court action. The parties may wish to
file a new motion with the Court that ...