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Degon v. USAA Casualty Insurance Co.

United States District Court, D. Oregon

November 12, 2019

AMY DEGON, Plaintiff,
v.
USAA CASUALTY INSURANCE COMPANY, Defendant.

          Frederick M. Millard, Douglas M. Bragg, and Melissa L. Young, Millard & Bragg, P.C., 419 Fifth Street, Oregon City, Oregon 97045. Attorneys for Plaintiff.

          Joshua N. Kastan, Damian P. Stutz, and Melanie E. Rose, DKM Law Group, LLP, 1050 SW Sixth Avenue, Suite 1100, Portland, Oregon 97204. Attorneys for Defendant.

          OPINION AND ORDER

          KARIN J. IMMERGUT UNITED STATES DISTRICT JUDGE

         Defendant removed this insurance coverage dispute from state court. Plaintiff seeks remand because removal was not timely or, alternatively, because the amount in controversy is too low for federal-court jurisdiction. For the reasons that follow, Plaintiff's motion is denied.

         STANDARDS

         A state-court civil action may be removed to federal court if plaintiff could have filed there in the first instance. 28 U.S.C. § 1441(a). For a federal court to have diversity jurisdiction, the parties must be citizens of different states, and the amount in controversy must exceed $75, 000. 28 U.S.C. § 1332(a); see Weeping Hollow Ave. Tr. v. Spencer, 831 F.3d 1110, 1112 (9th Cir. 2016).

         When the state-court complaint does not clearly plead the minimum amount in controversy, “the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional threshold.” Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118, 1121-22 (9th Cir. 2013) (quotations and citations omitted). The “defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). However, if the court or a party questions whether the matter satisfies the amount-in-controversy requirement, the court looks to “summary-judgment-type evidence relevant to the amount in controversy at the time of the removal” in addition to the complaint and removal petition. Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793 (9th Cir. 2018) (quoting Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005)); see Dart Cherokee, 574 U.S. at 89. There exists a “strong presumption” against removal jurisdiction, and federal jurisdiction “must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam).

         In addition to the requirements of federal subject-matter jurisdiction, there are procedural requirements for a timely removal under 28 U.S.C. § 1446. Fritsch, 899 F.3d at 788. A defendant normally has 30 days after receipt of the complaint or summons to remove a civil case to federal court. 28 U.S.C. § 1446(b)(1). However, if the initial pleading does not “affirmatively reveal[] on its face the facts necessary for federal court jurisdiction, ” Rea v. Michaels Stores, Inc., 742 F.3d 1234, 1238 (9th Cir. 2014) (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 691 (9th Cir. 2005)), then the petition for removal may be filed within the 30-day period after defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, ” 28 U.S.C. § 1446(b)(3). Under this statute, “other paper” includes responses to discovery. Id. at § 1446(c)(3)(A).

         BACKGROUND

         Plaintiff originally filed this action in Clackamas County Circuit Court on June 3, 2019, ECF 1-1 at 11, and served Defendant on June 5, ECF 1-2 at 2. Plaintiff alleges that Defendant breached the parties' contract and committed defamation, causing both economic damages and emotional distress. ECF 1-5 at 3-8. According to the complaint, Plaintiff seeks attorney's fees, available under ORS 742.061, on top of damages specified in the amount of $52, 500. Id. at 7.

         After answering the complaint on July 3, 2019, ECF 1-7 at 10, Defendant sent Plaintiff a set of requests for admission, dated the same day, ECF 1-8 at 10. Three of those queries specified:

REQUEST FOR ADMISSION NO. 5:
Admit that YOU are not seeking damages exceeding $75, 000.01, exclusive of interest ...

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