IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

MARIE TOOLE AND )

CHRIS TOOLE, )

 )

Plaintiff, )

 )

vs. ) CIVIL ACTION NUMBER

 ) 2:06-CV-652-VPM

ALFA MUTUAL INSURANCE CO; )

MATTHEW CHUPP; )

DON BRAMLETT, )

 )

Defendants. )

MOTION TO REMAND

Comes now Marie Toole and her husband, Chris Toole and, pursuant to 28 U.S.C. § 1447(c),

moves this Court to remand the above styled matter to the Circuit Court of Barbour County, Alabama.

As grounds for this motion, plaintiffs state as follows:

1. On June 20, 2006, Marie Toole and her husband, Chris Toole commenced a lawsuit

against the defendants by filing a complaint in the Circuit Court of Barbour County, Alabama. The

following information regarding the complaint is germane to the present motion to remand.

2. The named party-defendants were/are Matthew Chupp, Don Bramlett and Alfa Mutual

Insurance Company (“Alfa”). It is undisputed (a) that Alfa is an Alabama corporation, (b) that

Matthew Chupp and Don Bramlett are residents of Georgia , and (c) that the plaintiffs are residents

of Alabama, (d) the incident at issue occurred in Alabama, (e) possibly fictitious defendants, if any,

may be from Alabama and (e)the Alabama insurance policy for coverage/protection for underinsured

motorist coverage, was entered into, executed and remained enforce at the time of filing of the

complaint, in Alabama.

3. Marie Toole and her husband, Chris Toole factually alleged that on or about July 9, 2004

defendant Matthew Chupp, while driving a vehicle owned by defendant Don Bramlett did negligently

and/or wantonly and/or recklessly allow his vehicle to collide with the vehicle being driven by

plaintiff Marie Toole which caused her to suffer substantial bodily and physical injury as well as

emotional stress and mental anguish from her injuries and caused her to suffer the diminished value

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of her vehicle. Plaintiff Chris Toole, husband, personally suffered damages as a result of the loss of

consortium of his wife. 

4. Further, plaintiffs factually alleged that Don Bramlett was guilty of negligent and/or

wanton entrustment of his vehicle to defendant Matthew Chupp and that the injuries suffered by the

plaintiffs were entitled to be contractually compensated under a policy of insurance for underinsured

motorist protection coverage issued by defendant Alfa, an Alabama corporation, in the event the

tortfesors did not have sufficient insurance liability coverage to satisfy a judgment or a settlement that

would make the plaintiffs whole from the injuries they suffered. At the time of suit, the amount of

underlying coverage applicable to the plaintiff’s claims against the defendants had not been revealed.

As to the plaintiff’s causes of actions, they requested an unspecified amount for compensatory

damages and punitive damages.

5. On July 21, 2006, the defendants joined in together in support of and filed a disingenuous

and demonstratively baseless notice of removal. As to this motion to remand, the following aspects

are pertinent to show that the claim of diversity is suspect and a finding of federal jurisdiction is not

warranted:

a. Defendants only specifically asserted diversity jurisdiction as this Court’s

sole source of federal subject matter jurisdiction. Defendants failed to demonstrate the

presence of any claim or right arising under the Constitution, treaties, or laws of the United

States. Noticeably absent from the defendant’s pleadings is their statutory authority, case

citation or precedence from Alabama or relevant Federal courts establishing one iota of

support for its proposition that the plaintiff’s claims should be removed from State to

Federal court. The defendants argue that defendant Alfa, who still remains a party

although they are no longer named in the lawsuit, somehow does not matter for the

purpose of diversity jurisdiction because defendant Alfa exercised its right to strategically

opt out of the normal course of defense. However, Alfa does concede to verdict or

settlement should one be reached. Regardless of their procedural strategy, defendant Alfa

still remains a party to this action.

b. The defendant’s insincere motion to remand does not assert that complete

diversity exists between plaintiffs and defendants because any defendant was fraudulently

joined in this action. Simply, the defendants argue that now that defendant Alfa opted out

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of defending itself and since the case must be worth more than the federal jurisdiction

amount in controversy, then there is federal subject matter jurisdiction.

“Defendants...submit the amount in controversy, exclusive of interest and cost, is in excess

of $75,000.” Motion to Remove. Plaintiffs contend that the liability of the tortfesor

defendants is clear, and no recognizable legitimate defense exists as to why they caused

the plaintiff’s injuries. If each and all of the defendants are now sincerely conceding that

the plaintiff’s claims are valued at more than $75,000, then the plaintiffs are willing to

entertain offers from the defendants to settle their claim in excess of this Court’s

jurisdictional amount. However, the plaintiffs genuinely doubt that will be the defendants

tune. As to satisfying the amount-in-controversy threshold requirement, the defendants

merely state, without evidence or supporting authority, that if the allegations in the

Complaint are proven, the amount in controversy requirement of $75,000.00 will be

satisfied. Unfortunately for the defendants, that is not the law and even if the case is

valued at more than $75,000, complete diversity of the parties can not be established. 

 Pursuant to Rule 18(a) of the Alabama Rules of Civil Procedure, a plaintiff “asserting

a claim to relief as an original claim ... may join, either as independent or as alternate

claims, as many claims either legal or equitable, or both, as the party has against an

opposing party.” Additionally, Rule 17(a), 18(a) and 19 of the Federal Rules of Civil

Procedure authorize and support a remand. In Cohen v. Office Depot, Inc., 204 F.3d 1069

(11 Cir. 2000), the Elevent Ciruit held that “A conclusory allegation in the notice of th

removal that the jurisdiction amount is satisfied, without setting forth the underlying facts

supporting such an assertion, is insufficient to meet the defendant’s burden.” Williams v.

Best Buy Co., 269 F.3d 1316, 1319-20 (11 Cir. 2001). Further for the Court’s th

consideration, mere citation to what occurred in earlier lawsuits will not satisfy the

defendant’s burden. Federated Mutual Ins. Co. v. McKinnon Motors, LLC., 329 F.3d 805,

809 (11 Cir. 2003). In its notice of removal, the defendants made an assertion that the th

amount in controversy “clearly exceeds” $75,000 but failed to set forth the essential

underlying facts to support its assertion. The defendants have failed to proffer the

evidentiary materials or any persuasive authority necessary to meet its burden. 

Case 2:06-cv-00652-MHT-WC Document 6 Filed 08/07/2006 Page 3 of 7
 GENERAL LEGAL PRINCIPLES 

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life

Ins. Co. of America, 511 U.S. 375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Burns v.

Windsor Ins. Co., 31 F.3d 1092, 1095 (1994).

Removal statutes must be strictly construed because Congressional intent in

enacting removal legislation was to restrict removal jurisdiction. Shamrock Oil & Gas Corp.

v. Streets, 313 U.S. 100, 108, 61 S. Ct. 868, 85 L. Ed. 2d 1214 (1921); Lane v. Champion

Internat’l Corp., 827 F. Supp. 701, 705 (S.D. Ala. 1993).

Because federal removal jurisdiction is very limited, the remanding of a

removed case is favored where the existence of federal subject-matter jurisdiction is not

absolutely clear. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1994). “A presumption in

favor of remand is necessary because if a federal court reaches the merits of a pending motion

in a removed case where subject matter jurisdiction may be lacking it deprives a state court

of its right under the Constitution to resolve controversies in its own courts.” Klempner v.

Northwestern Mut. Ins. Co., 196 F. Supp. 2d 1223, 1237 (S.D. Fla. 2001).

The removing party bears the burden of demonstrating the existence of federal

removal jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S. Ct. 35, 660 L.

Ed. 144 (1921); Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11 Cir. 2002). The th

removing party has the burden of proving anyasserted fraudulent joinder. Crowe v. Coleman,

113 F.3d 1536, 1538 (11 Cir. 1997). In determining whether a colorable claim is asserted th

against a non-diverse defendant, the federal court must “evaluate factual allegations in the

light most favorable to the plaintiff and resolve any uncertainties about the applicable law in

the plaintiff’s favor.” Pacheo de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11 Cir. 1998). th

“[I]f there is even a possibility that [a] state court would find that the complaintstates a cause

of action against any ... resident defendant, [a court must] find joinder was proper and remand

[the] case to state court.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11 Cir. 1997). th

The Eleventh Circuit continued:

In terms of this circuit’s law, the main point for us is this one:

For a plaintiff to present an arguable claim against an in-state

defendant and, therefore, to require a case removed to federal court to

be remanded to state court, the plaintiff need not show that he could

survive in the district court a motion for summary judgment filed by

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that in-state defendant. For a remand, the plaintiff’s burden is much

lighter than that: after drawing all reasonable inferences from the

record in the plaintiff’s favor and then resolving all contested issues of

fact in favor of the plaintiff, there need only be “a reasonable basis for

predicting that the state law might impose liability on the facts

involved. 113 F.3d at 1541-42.

The defendants have the burden of proving that the amount in controversy is $75,000

or more. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11 Cir. 2001). As stated in th

Williams:

When the complaint does not claim a specific amount of

damages, removal from state court is proper if it is facially apparent

from the complaint that the amount in controversy exceeds the

jurisdictional requirement. If the jurisdictional amount is not facially

apparent from the complaint, the court should look to the notice of

removal and may require evidence relevant to the amount in

controversy at the time the case was removed. We reiterate that the

burden of proving jurisdiction lies with the removing defendant. A

conclusory allegation in the notice of removal that the jurisdictional

amount is satisfied, without setting forth the underlying facts

supporting such an assertion, is insufficient to meet the defendant’s

burden. 269 F.3d at 1319-20.

In Sierminski v. TransSouth Financial Corp., 216 F.3d 945 (11 Cir. 2000), the th

Eleventh Circuit indicated that, if the plaintiff does not claim damages in excess of the jurisdictional

threshold amount and if the defendant proffers “no facts whatsoever” to demonstrate that the

jurisdictional amount is satisfied, the defendant fails to meet its “burden on removal of proving that

the amount in controversy requirement is satisfied.” 216 F.3d at 948 (quoting Singer v. State Farm

Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9 Cir. 1997)). th

In Pensinger v. State Farm Fire & Cas. Co., 347 F. Supp. 2d 1101 (M.D. Ala. 2003),

in addition to finding that State Farm failed to show that an insurance agent had been fraudulently

joined, the court found that State Farm failed to establish that the plaintiffs’ claims exceeded the

threshold jurisdictional amount. In their complaint, the Pensingerssought an undermined amount in

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damages. In its notice of removal, State Farm asserted that the amount-in-controversy requirement

was meant because, “at paragraph of the Complaint[,] Plaintiffs aver their home was ‘heavily

damaged’ by a water leak in and subsequently allegedly suffered ‘heavy water damage’” and because

“it is clearthat Plaintiffs are seeking benefits under their policy of insurance which contains [a] policy

limit[ ] of $79,220.” 347 F. Supp. 2d at 1108. The court wrote:

 “There is no specific evidence upon which the Court can conclude that the

plaintiffs’ damage actually exceeds $75,000. The Court cannot infer from the

plaintiffs’ allegation that their home was “heavily damaged” that the cost to repair it

will exceed $75,000. Nor is there an evidentiary or other logical basis for inferring

that the policy limits are conclusive of the amount of damage. Thus, the defendants’

conclusion that the jurisdictional threshold is met is unsupported by their submission

or the present record in this case. Conjecture that “an amount in controversy could

possibly be met” is not the equivalent of demonstrating by a preponderance of the

evidence that it will be met. The plaintiffs are still the master of their complaint, and

the court will not substitute its judgment regarding the amount of damages that they

have incurred. Accordingly, the defendants have not met their burden of proving that

the amount in controversy exceeds the jurisdictional amount.”

Finally, the defendants have made no showing as to the amount of punitive damages

which either plaintiff might expect to recover. Federated Mutual Insurance Co. V. McKinnon Motors,

LLC., 329 F. 3D 805, 809 (11 Cir. 2003). Again, the Eleventh Circuit Court held that past punitive th

damages awards in other cases are not sufficient proof of jurisdictional amount under the

preponderance of the evidence test.

WHEREFORE, the plaintiffs respectfully move this Honorable Court to remand this

matter to theCircuit Court of Barbour County, Alabama since the District Court lacks subject matter

jurisdiction due to there being no colorable dispute as to diversity of citizenship and/or since the

amount in controversy does not exceed the jurisdictional limits. 28 U.S.C. sec. 1447(c).

Case 2:06-cv-00652-MHT-WC Document 6 Filed 08/07/2006 Page 6 of 7
 (s) Jim S. Calton, Jr. 

 Jim S. Calton, Jr.

226 East Broad Street 

P.O. Box 895

Eufaula, AL 36072-0895

(334) 687-3563

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document by placing same in the

U.S.mail, postage paid August 4, 2006 and properly addressed and electronically emailed to.

Randall C. Morgan, Esq. 

HILL, HILL, CARTER

PO Box 116

Montgomery, Alabama 36101

rmorgan@hillhillcarter.com

Courtney R. Potthoff, Esq.

WILLIAMS, POTTHOFF

PO Box 880

Eufaula, Alabama 36027

copotthoff@mindspring.com 

This the 4 day of August, 2006. (s) Jim S. Calton, Jr. 

 OF COUNSEL

 

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