McCollum v. Motorists Mutual Insurance Company, No. 5:2011cv00370 - Document 6 (E.D. Ky. 2011)

Court Description: MEMORANDUM OPINION AND ORDER: It is ORDERED that this case is REMANDED to the Madison Circuit Court and the case shall be STRICKEN from the Court's active docket. Signed by Judge Joseph M. Hood on 12/5/2011.(SCD)cc: COR,Madison CC

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON LOWELL T. MCCOLLUM, ) ) ) Civil Action No. 5:11-CV-370-JMH ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) Plaintiff, v. MOTORISTS MUTUAL INSURANCE COMPANY, Defendant. ** ** ** ** ** On November 17, 2011, Defendant filed a Notice of Removal [DE 1], removing the above-referenced matter from Madison Circuit Court, alleging that this Court has original jurisdiction pursuant to 28 U.S.C. § 1332. Because of Defendant s failure to demonstrate, in its Notice of Removal, that the statutory amountin-controversy requirement is satisfied, the Court ordered Defendant to show cause why this matter should not be remanded to state court. [DE 3]. Defendant has filed its Response [DE 5] to the Court s Order and this matter is now ripe for decision. For the following reasons, this matter shall be remanded to state court. See 28 U.S.C. § 1447(c). A defendant seeking to remove a case to federal court has the burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. See Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001); 28 U.S.C. § 1332. When a plaintiff seeks to recover an unspecified amount that is not self-evidently greater or less than the federal amount-incontroversy requirement, a defendant can remove the case only by showing that the claim more likely than not exceeds the statutory requirement. Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993), overturned on other grounds by Hertz Corp. v. Friend, -U.S.-, 130 S.Ct. 1181 (2010). While proof within a legal certainty is not required, Id., the removing defendant must provide competent proof that the requirement is met. Cleveland Hous. Renewal Project v. Deutsche Bank & Trust Co., 621 F.3d 554, 559 (6th Cir. 2010). In its Response, Defendant failed to offer additional proof of an amount in controversy exceeding $75,000. While the Court agrees that pre-removal requests for admission may serve as competent proof, the admission upon which Defendant relies does not constitute such proof. Plaintiff s admission that his damages do not exceed $75,000.00, so long as attorney s fees are not included, is not the same as an admission that his damages do exceed $75,000.1 Further, as the Court has already noted, Plaintiff s previous demand of less than $7,000 suggests that the amount in controversy was less than $75,000.01 at the time of removal. [See DE 3, p. 3]. Defendant s proffered evidence does not show that, more likely than not, the amount in controversy in this matter exceeds $75,000. 1 The Court has no opinion as to whether Plaintiff s affidavit constitutes a stipulation, particularly in light of the absence of the Court s jurisdiction to further consider the case. 2 Accordingly, it is hereby ORDERED that this case is REMANDED to the Madison Circuit Court and the case shall be STRICKEN from the Court s active docket. This the 5th day of December, 2011. 3

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