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Marcia Dale v. For Remand St. Paul Fire and Marine Insurance (Docket No. 9) Company

October 22, 2012

MARCIA DALE,
PLAINTIFF,
v.
FOR REMAND ST. PAUL FIRE AND MARINE INSURANCE (DOCKET NO. 9) COMPANY, DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

RE: PLAINTIFF'S MOTION

Currently pending before the Court is Plaintiff's Motion for Remand (Docket No. 9). Having carefully reviewed the record and otherwise being fully advised, the Court enters this Memorandum Decision and Order:

I. BACKGROUND

1. On April 7, 2008, Plaintiff Marcia Dale ("Plaintiff") was involved in a motor vehicle accident. See Compl., ¶ 1.1 (Docket No. 1, Att. 2).

2. Plaintiff filed suit on March 16, 2012 in the Fourth Judicial District for the State of Idaho, in and for the County of Ada, against Travelers Insurance Company. See id. Plaintiff amended her Complaint on April 19, 2012, substituting out Travelers Insurance Company for St. Paul Fire and Marine Insurance Company ("Defendant") -- no additional, substantive changes were made to Plaintiff's Complaint. See Am. Compl. (Docket No. 1, Att. 5).

3. Plaintiff's Amended Complaint seeks damages for alleged "serious personal injuries" and related losses as a result of the April 7, 2008 motor vehicle accident. See Am. Compl., ¶ 1.1 (Docket No. 1, Att. 5). Specifically, Plaintiff's suit seeks coverage for those damages under the underinsured motorist provisions of the automobile liability policy issued by Defendant. See id. at ¶¶ 2.5-2.11. Plaintiff alleges that a December 7, 2011 proof of loss statement and supporting documents were submitted to Defendant, but that "Defendant has failed to fully compensate Plaintiff in the amount justly due under the [automobile liability policy]." See id. at ¶ 2.11. As a consequence, Plaintiff asserts the following causes of action against Defendant: (1) breach of contract, and (2) specific performance. See id. at ¶¶ 3.1-4.2.

4. Consistent with Plaintiff's "pray[er] for judgment against Defendant in an amount in excess of $10,000 . . ." (see id. at ¶ 1, p. 6), the above-referenced proof of loss demands $65,000 from Defendant:

We believe that Ms.Dale's total claim, including general damages should be valued at $90,000. The third-party tortfeasor's liability policy limits were only $25,000 as you can see from the Declaration page provided. Therefore, Ms. Dale is looking at a deficit of $65,000 which will need to be paid from Valley Ride/Traveler's underinsured policy.

See Ex. A to Moore Aff. (Docket No. 1, Att. 10).

5. On May 18, 2012, Defendant removed the action to this Court. See Def.'s Not. of Removal (Docket No. 1). Therein, Defendant states that Plaintiff is a citizen of the State of Idaho, while Defendant is a foreign corporation with its state of incorporation and principal place of business located in Connecticut. See id. at pp. 1-2. Defendant alleges that the amount in controversy exceeds $75,000 in light of the $65,000 proof of loss, coupled with a probable attorneys' fee award in excess of $20,000 in the event Plaintiff prevails at trial. See id. at pp. 2-3.

6. On June 6, 2012, Plaintiff filed the at-issue Motion for Remand, arguing that the amount in controversy does not exceed $75,000, as required for diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). See Mot. for Remand, pp. 1-2 (Docket No. 9). In support of her remand efforts, Plaintiff points to: (1) a May 22, 2012 letter (4 days after Defendant's Notice of Removal) in which Plaintiff offers to settle the action for $52,500, (2) a May 31, 2012 counter-offer from Defendant in the amount of $7,500, and (3) a June 5, 2012 letter in which Plaintiff offers to settle the action for $42,000. See Noble Aff. at ¶¶ 2-3 (Docket No. 9, Att. 1).

7. Defendant opposes Plaintiff's Motion for Remand, arguing that Plaintiff's "voluntary reduction of the amount demanded causing the amount in controversy to fall below the sum necessary to give the district court jurisdiction does not divest the Court of its ...


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