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103155337_1

201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

Lewis Roca Rothgerber Christie LLP

201 East Washington Street, Suite 1200

Phoenix, AZ 85004-2595

Stephen M. Bressler (State Bar No. 009032)

Direct Dial: 602.262.5376

Direct Fax: 602.734.3742

Email: sbressler@lrrc.com

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Dawn J. McGinnis, M.D., an Arizona

resident,

Plaintiff,

vs.

The Paul Revere Life Insurance Company,

a foreign insurer, and Unum Group

Corporation, a foreign corporation,

Defendants.

Case No.

NOTICE OF REMOVAL

Defendants The Paul Revere Life Insurance Company and Unum Group (jointly

“Defendants”) remove this action from the Superior Court of Arizona, County of

Maricopa to the United States District Court for the District of Arizona, pursuant to 28

U.S.C. §§ 1332, 1441 and 1446 and LRCiv 3.6.

I. INTRODUCTION.

This lawsuit arises out of plaintiff’s claim for monthly disability benefits under

an individual disability insurance policy. She seeks $7650 per month, dating back to

March 11, 2016, as well as extra-contractual damages for alleged bad faith and

punitive damages.

Plaintiff filed this lawsuit against Defendants in Maricopa County Superior

Court, Case No. CV 2017-014735 on December 20, 2017. (See Exhibit A, State Court

File, Complaint). Plaintiff served CSC on December 21, 2017. CSC forwarded the

summons and complaint to Unum’s law department, which received it on December

Case 2:18-cv-00099-DGC Document 1 Filed 01/10/18 Page 1 of 6
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201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

26. Plaintiff alleges two causes of action against Defendants: (1) breach of contract;

and (2) breach of the covenant of good faith and fair dealing. Pursuant to these claims,

McGinnis seeks to recover: (1) damages for alleged breach of contract (count one), (2)

actual, general and consequential damages for alleged bad faith (count two), (3)

punitive damages (count two) and (4) attorneys’ fees pursuant to A.R.S. § 12-341.01

(counts one and two). Defendants have not yet responded to McGinnis’ Complaint.

Removal is appropriate because this Court has diversity jurisdiction under 28

U.S.C. § 1332. Diversity jurisdiction exists because the parties are diverse and the

amount in controversy exceeds $75,000.

II. THIS COURT HAS JURISDICTION UNDER 28 U.S.C. § 1332.

A. There Is Diversity of Citizenship.

1. McGinnis is a Citizen of Arizona

McGinnis alleges she has been an Arizona resident at all relevant times.

(Complaint ¶ 1.)

2. Defendants are Foreign Citizens.

For purposes of diversity jurisdiction, a corporation is deemed to be a citizen of

every state where it has been incorporated and where it has its principal place of

business. 28 U.S.C. § 1332(c); Hertz Corp v. Friend, 559 U.S. 77, 80-81 (2010)

(“‘[P]rincipal place of business’ refers to the place where the corporation’s high level

officers direct, control, and coordinate the corporation’s activities.”).

Paul Revere is a Massachusetts corporation that has its principal place of

business in Portland, Maine.

Unum Group is Delaware corporation with its principal place of business in

Chattanooga, Tennessee. (Complaint, ¶ 5)

B. The Amount In Controversy Exceeds $75,000.

Where there is diversity of citizenship, the “district courts shall have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). A notice of

Case 2:18-cv-00099-DGC Document 1 Filed 01/10/18 Page 2 of 6
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201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

removal need only contain a “plausible allegation” that the amount in controversy

exceeds $75,000, and does not need to provide evidence supporting that allegation.

Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014) (“[A]

defendant’s notice of removal need include only a plausible allegation that the amount

in controversy exceeds the jurisdictional threshold.”).

1. Insurance Disability Benefits

The amount in controversy exceeds $75,000.1

Paul Revere paid Plaintiff monthly disability benefits from September 14, 2015

to March 11, 2016. For her contract claim, Plaintiff seeks monthly disability benefits

of $7650 from March 11, 2016 forward. As of January 9, 2018, these benefits totaled

$160,650. This alone satisfies the amount in controversy.

2. Attorneys’ Fees

Plaintiff also seeks attorneys’ fees pursuant to A.R.S. § 12-341.01. (Complaint

¶ 52). Attorneys’ fees are included in the amount in controversy when assessing

whether the jurisdictional minimum has been met. Galt G/S v. JSS Scandinavia, 142

F.3d 1150, 1156 (9th Cir. 1998) (including attorneys’ fees to calculate the amount in

controversy); Goldberg v. CPC Int’l, 678 F.2d 1365, 1367 (9th Cir. 1982) (“attorneys’

fees can be taken into account in determining the amount in controversy if a statute

authorizes fees to a successful litigant”); Richmond v. Allstate Ins. Co., 897 F. Supp.

447, 449-50 (S.D. Cal. 1995) (amount in controversy may include attorneys’ fees

where recoverable by statute or contract).

1

The amount in controversy is “not proof of the amount the plaintiff will recover.

Rather, it is an estimate of the amount that will be put at issue in the course of the

litigation.” McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008); Brill v

Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005) (“The question is

not what damages the plaintiff will recover, but what amount is ‘in controversy’

between the parties. That the plaintiff may fail in its proof, and the judgment be less

than the threshold (indeed, a good chance that the plaintiff will fail and the judgment

will be zero) does not prevent removal.”); Amoche v. Guar. Trust Life Ins. Co., 556

F.3d 41, 51 (1st Cir. 2009) (“[T]he pertinent question is what is in controversy in the

case, not how much the plaintiffs are ultimately likely to recover.”). Defendants

expressly reserve the right to deny liability and assert all defenses to Plaintiff’s

substantive claims, as well as to contest the amount of her alleged damages.

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201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

3. Bad Faith Compensatory and Punitive Damages.

Plaintiff alleges Defendants acted in bad faith when they denied her claim

Pursuant to her bad faith claim, Wood seeks to recover compensatory and punitive

damages. Compensatory and punitive damages count toward the amount in

controversy. See Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005) (“In

determining the amount in controversy, the district court properly considered . . .

emotional distress damage awards in similar . . . cases. . . .”); Chabner v. United of

Omaha Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th Cir. 2000); Burk v. Med. Sav. Ins.

Co., 348 F. Supp. 2d 1063, 1069 (D. Ariz. 2004) (“Punitive damages may [] be

included in determining the amount in controversy if they are recoverable under the

applicable law.”); Ansley v. Metro. Life. Ins. Co., 215 F.R.D. 575, 578 (D. Ariz. 2003)

(noting that where the plaintiff alleged that MetLife “unfairly and dishonestly” denied

her claim for disability benefits and sought damages to “deter such action in the

future,” the amount of punitive damages at issue was more likely than not

“significantly large,” as evidenced by other insurance bad faith cases cited by MetLife

in the notice of removal).

4. The Amount in Controversy Exceeds $75,000.

The claimed monthly disability benefits alone put the amount in controversy

over this Court’s jurisdictional limit. Defendants, therefore, remove this cause based

on diversity jurisdiction because all of the information presents a “plausible allegation”

that the amount in controversy exceeds $75,000. See Dart, 135 S. Ct. at 554.

III. THIS REMOVAL IS TIMELY.

Plaintiff filed this action in Maricopa County Superior Court on December 20,

2017. (See Exhibit A, State Court File.) Plaintiff served CSC on December 21, 2017.

Unum’s law department received the complaint on December 26. Thus, this removal is

timely under 28 U.S.C. § 1446(b) because it is being filed within 30 days from the date

on which Defendants were served with the Complaint.

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103155337_1 5

201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

IV. DEFENDANTS HAVE MET ALL OTHER REQUIREMENTS FOR

REMOVAL.

A. A Copy Of The State Court Record Is Attached.

Defendants attach a complete copy of the Maricopa County Superior Court

record as Exhibit A (Docket, Affidavit of Service, Summons, Complaint, Certificate of

Compulsory Arbitration, Cover Sheet, and Notice of Demand for Jury Trial), and

verify that Exhibit A constitutes a true and complete copy of all pleadings and other

documents filed in Maricopa County Superior Court in this matter. See Declaration of

Stephen M. Bressler, attached as Exhibit B hereto. Defendants also attach as Exhibit C

hereto a copy of the Notice of Filing for Notice of Removal which is being filed with

the Clerk of the Superior Court in the State of Arizona in and for the County of

Maricopa in this matter today.

V. DEFENDANTS HAVE NOTICED MARICOPA COUNTY SUPERIOR

COURT CLERK AND PLAINTIFF.

Defendants are filing a copy of this Notice of Removal with the Clerk of the

Maricopa County Superior Court today pursuant to 28 U.S.C. §1446(d) and Local Rule

of Civil Procedure 3.7(a). Defendants are also providing McGinnis with written notice

of the filing of this Notice of Removal today through her counsel.

VI. CONCLUSION.

Defendants respectfully request this Court accept this Notice of Removal,

assume jurisdiction of this case, and that all further proceedings be heard in this Court.

DATED this 10th day of January, 2018.

LEWIS ROCA ROTHGERBER CHRISTIE LLP

By: /s/Stephen M. Bressler

Stephen M. Bressler

Attorneys for Defendants

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201 East Washington Street, Suite 1200Phoenix, AZ 85004-2595

CERTIFICATE OF SERVICE

I certify that on this 10th day of January, 2018, I electronically transmitted the

attached document to the Clerk’s Office using the CM/ECF System for filing and

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Charles J. Surrano III, cjs@surranolawfirm.com

John N. Wilborn, jnw@surranolawfirm.com

Stephen C. Yost, syost@cycn-phx.com

/s/ Kathleen A. Topczewski

Case 2:18-cv-00099-DGC Document 1 Filed 01/10/18 Page 6 of 6