United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, UNITED STATES DISTRICT COURT JUDGE
Simon originally filed this case in the Circuit Court of
Lowndes County, Mississippi against State Farm Mutual
Automobile Insurance Company, alleging that State Farm
breached its insurance contract in bad faith. Simon amended
her complaint on February 21, 2018. See Amended
Complaint . State Farm removed the case to this Court on
February 21, 2018. See Notice of Removal .
Presently before the Court is the Plaintiff's Motion to
Remand  the case back to the Circuit Court.
October 14, 2014, the Plaintiff's car was struck in the
rear by an unidentified driver on 7th Avenue North in
Columbus, Mississippi. After the Columbus Police Department
conducted an investigation, the Plaintiff submitted a claim
to her insurance company, Defendant State Farm. Specifically,
the Plaintiff sought medical pay coverage for the cost of her
therapy with Rehab at Work. According to the Plaintiff, after
negotiations and correspondence between the two parties, the
Defendant agreed to pay the outstanding bill owed to Rehab at
Work. The bill was never paid by the Defendant. The Plaintiff
now requests remand and the Defendant opposes.
Judiciary Act of 1789 provides that “any civil action
brought in a State court of which the districts of the United
States have original jurisdiction, may be removed by the
defendant, to the district court of the United States for the
district and division embracing the place where such action
is pending.” 28 U.S.C. § 1441(a). Federal courts
are courts of limited jurisdiction. Epps v.
Bexar-Medina-Atascosa Counties Water Improvement Dist. No.
1, 665 F.2d 594, 595 (5th Cir. 1982). Diversity
jurisdiction exists “where the matter in controversy
exceeds the sum or value of $75, 000.00, exclusive of
interest and cost, and is between . . . citizens of different
states.” 28 U.S.C. § 1332(a); Addo v. Globe
Life and Accidents Ins. Co., 230 F.3d 759, 761 (5th Cir.
2000). After removal of a case, a plaintiff may move for
remand, and “[i]f it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c).
motion to remand has been filed, the burden is on the
removing party to establish that federal jurisdiction exists.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). The Fifth Circuit has held that the removal
statutes are to be construed “strictly against removal
and for remand.” Eastus v. Blue Bell Creameries,
L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108-9, 61 S.Ct.
868, 85 L.Ed. 1214 (1941).
Plaintiff objects to the Notice of Removal as untimely and
argues that the claim does not satisfy the requisite amount
support of this argument, she first contends that the removal
notice should have been filed within thirty days after the
filing of the initial complaint. Federal procedure,
specifically 29 U.S.C. § 1446(b), squarely addresses
this issue. A removal notice “shall be filed within
thirty days after the receipt by the defendant, through
service or otherwise, a copy of the [complaint].” 28
U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 347, 119 S.Ct. 1322,
143 L.Ed.2d 448 (1999). Thus, the time for removal runs from
the time of service, not filing.
although the initial Complaint  was filed on October 12,
2017, the Amended Complaint  was filed on November 20,
2017. Service was not perfected on the Defendant until
February 6, 2018, making March 6, 2018 the deadline to file a
Notice of Removal. See Defendant's
“Exhibit A” Notice of Service of Process. The
Defendant filed its Notice of Removal  on February 21,
2018, well within the deadline. Therefore, the Notice of
Removal was properly and timely filed with the Court.
Plaintiff argues next that the amount in controversy does not
exceed the requisite $75, 000 exclusive of interest and cost.
See 28 U.S.C. § 1332(a). The Plaintiff asserts
that because the complaint does not specify the amount of
relief sought, the amount in controversy is merely
a complaint does not allege a specific amount of damages, the
party invoking federal jurisdiction must prove by a
preponderance of the evidence that the amount in controversy
exceeds the jurisdictional amount.” Safeco Ins. Co.
of Indiana v. Kamat, 846 F.Supp.2d 755, 758 (S.D. Tex.
2012) (citing St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)).
“The district court must first examine the complaint to
determine whether it is ‘facially apparent' that
the claims exceed the jurisdictional amount.” Judd
v. Fountainbleau Management Services, LLC, 2011 WL
2654239, at *3 (N.D. Miss. July 6, 2011). “The
defendant may prove that amount either by demonstrating that
the claims are likely above $75, 000 in sum or value, or by
setting forth the facts in controversy that support a finding
of the requisite amount.” Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)
(quoting Allen v. R & H Oil & Gas Co., 63
F.3d 1326, 1335 (5th Cir.), reh'g denied, 70
F.3d 26 (5th Cir. 1995)); Simon v. Wal-Mart Stores,
Inc., 193 F.3d 848, 850 (5th Cir. 1999).
Plaintiff's Complaint  request both compensatory and
punitive damages for intentional infliction of emotional
distress, mental anguish, and medical bills. The Plaintiff
contends that her losses are permanent and continuous. In its
calculation, the Court must consider damages suffered as a
result of the alleged intentional infliction of emotional
distress, mental anguish, and medical bills. In addition to
compensatory damages, the Court considers punitive damages in
its determination. The Fifth Circuit made ...