United States District Court, E.D. Missouri, Eastern Division
CHAD G. CARTER, Plaintiff,
NATIONWIDE INSURANCE COMPANY OF AMERICA, Defendant.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion to
remand [ECF No. 8]. Defendant has not filed opposition to the
motion or sought more time in which to do so. See
Local Rule 7-4.01(B).
Chad G. Carter alleges that on February 1, 2017, he drove a
motor vehicle that was struck by another motor vehicle,
resulting in permanent, painful, and “serious injuries
to [Plaintiff's] right eye, head, neck, back, shoulders,
and chest” that have required Plaintiff and will
continue to require Plaintiff to obtain medical treatment.
Pl.'s pet'n ¶¶ 3-6, 9-11 [ECF No. 4]. The
other driver, Plaintiff alleges, had “a bodily injury
liability policy at the time of the collision [with] limits .
. . less than the amount needed to fully compensate
Plaintiff” and “[t]he limits of [the other
driver's] applicable bodily injury liability polic[y]
have been exhausted by payment to Plaintiff.”
Id. ¶¶ 16, 17. Plaintiff further alleges
that he demanded Defendant “pay the limits of the
underinsured motorist coverage afforded by the policy of
insurance [Defendant] issued [to Plaintiff]”
(“the Policy”). Id. ¶ 20. Defendant
allegedly refused to make payment according to the Policy
and, Plaintiff asserts, that refusal “is
vexatious” and “without cause.”
Id. ¶¶ 21-23. The only amount of monetary
value alleged in the petition is the amount Plaintiff
specified as his request for relief:
a judgment against Defendant in a sum in excess of
Twenty-Five Thousand Dollars ($25, 000.00) . . . to
compensate Plaintiff, interest thereon pursuant to R[S]Mo
[Section] 375.296, vexatious refusal damages pursuant to
R[S]Mo [Section] 375.420, reasonable attorney's fees
pursuant to R[S]Mo [Section] 375.420, [and] court costs
incurred in this action.
WHEREFORE par., Pl.'s pet'n at 4 [ECF No. 4].
filed this lawsuit in the Circuit Court of the City of St.
Louis. See Carter v. Nationwide Ins. Co., No.
1922-CC00855 (St. Louis City Cir. Ct. filed Apr. 29, 2019)
(available on Missouri casenet,
(last visited on July 30, 2019)). Defendant removed the case
to this Court based on this Court's diversity
jurisdiction. See 28 U.S.C. §§ 1332(a),
1441; Def.'s notice of removal (“NOR”) [ECF
No. 1]. Specifically, Defendant stated the parties were
citizens of different states and, based on the allegations in
the petition, the amount in controversy exceeded $75, 000. To
support its position that the amount in controversy is
satisfied, Defendant stated the underinsured motorist
coverage afforded by the Policy has a $100, 000.00 limit.
Def.'s NOR ¶ 12.
moves to remand the case to the Circuit Court of the City of
St. Louis on the ground the amount in controversy does not
exceed $75, 000, “exclusive of interest and
costs” as required by Section 1332(a), and therefore
this Court lacks subject matter jurisdiction over the case.
Plaintiff attached to his motion several materials, including
a letter, dated November 1, 2018, reflecting his
pre-litigation demand that Defendant pay Plaintiff “any
and all available coverages” under the Policy [ECF No.
8-3 at 3] and a copy of the Policy [ECF No. 8-4]. Plaintiff
contends this Court lacks diversity jurisdiction because: (1)
the Policy “specifically contains language that
[Defendant] will not make a duplicate payment for any element
of loss that has been paid by or on behalf of persons legally
responsible”; (2) Plaintiff “received $50, 000.00
from the at fault driver [who] was underinsured”; (3)
“[a]ll available coverages under the . . . Policy [are]
equal to $50, 000.00”; and (4) “Plaintiff did not
demand or seek more than the remaining available coverages of
$50, 000.00 afforded by [the] Policy.” Pl.'s mot.
¶¶ 10-13, respectively [ECF No. 8].
removed case must be remanded “[i]f at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction.” 28 U.S.C. § 1447(c).
To invoke this Court's subject matter jurisdiction based
on diversity, the parties must be citizens of different
states and the amount in controversy must exceed “$75,
000, exclusive of interest and costs.” 28 U.S.C. §
1332(a). There is no question that the parties are citizens
of different states: Plaintiff is a citizen of Missouri,
see Pl.'s pet'n ¶ 1, and Defendant is a
citizen of Ohio and Iowa, see Def.'s NOR, ¶
3. The issue is whether the amount in controversy, exclusive
of interest and costs, exceeds $75, 000.00.
case removed based on this Court's diversity jurisdiction
under 28 U.S.C. Section 1332, “the sum demanded in good
faith in the initial pleading [is] deemed the amount in
controversy.” 28 U.S.C. § 1446(c)(2). When the
initial pleading does not state the amount in controversy,
the defendant's notice of removal may do so. 28 U.S.C.
§ 1446(c)(2)(A). To assert the amount in controversy
adequately in the removal notice, the defendant “need
include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold” and
“need not [include] evidentiary submissions.”
Dart Cherokee Basin Operating Co., LLC v. Owens, 135
S.Ct. 547, 554, 551 (2014). “Evidence establishing the
amount in controversy is required . . . only when the
plaintiff contests, or the court questions, the
defendant's allegation” in the notice of removal.
Id. at 554. Importantly, “when determining the
amount in controversy, the question is not whether the
damages are greater than the requisite amount, but
whether a fact finder might legally conclude that
they are.” Raskas v. Johnson & Johnson,
719 F.3d 884, 887 (8th Cir. 2013) (emphasis in
original) (internal quotation marks and citations omitted);
accord Dammann v. Progressive Direct Ins. Co., 856
F.3d 580, 584 (8th Cir. 2017).
does not demand a specific amount in her petition, beyond
asking for an award greater than $25, 000.00. In its notice
of removal, Defendant alleged that the more-than-$75, 000.00
amount in controversy requirement of 28 U.S.C. § 1332(a)
was satisfied due to: (1) “allegations in
Plaintiff's Petition, ” (2) the Policy's $100,
000 underinsured motorist limit, and (3) Plaintiff's
request for “the limits of the underinsured motorist
coverage afforded by” the Policy. Def.'s NOR
¶¶ 13, 12, and 11, respectively; see
Policy's “Declarations Amended” page stating
that the per person underinsured motorist coverage has a
$100, 000 limit [ECF No. 8-4 at 4]. These statements do not
establish that the amount in controversy exceeds $75, 000.00,
exclusive of interest and costs, in light of the materials
and information Plaintiff provided in his unopposed motion to
remand. By failing to file a response to Plaintiff's
motion to remand, Defendant has not taken an opportunity to
provide sufficient evidence to allow the Court to find, by a
preponderance of the evidence, that a finder of fact
“might legally conclude that” the amount in
controversy between Defendant and Plaintiff exceeds the
jurisdictional threshold. See 28 U.S.C. §
1446(c)(2)(B) (removal based on an amount in controversy set
forth in the notice of removal is proper “if the
district court finds, by the preponderance of the evidence,
that the amount in controversy exceeds the amount specified
in section 1332(a)”); Dart Cherokee Basin Operating
Co., LLC, 135 S.Ct. at 554 (“when a
defendant's assertion of the amount in controversy is
challenged . . . both parties submit proof and the court
decides by a preponderance of the evidence whether the
amount-in-controversy requirement has been satisfied”).
To the contrary, the present undisputed record reveals that,
as Plaintiff argues, Defendant's liability to Plaintiff
may not exceed $50, 000.00, exclusive of interest and costs.
after careful consideration, IT IS HEREBY
ORDERED that Plaintiffs unopposed motion to remand
[ECF No. 8] is GRANTED
IS FURTHER ORDERED that this case is
REMANDED to the Circuit Court of the City of