Plaintiff filed a nearly identical Complaint in Boulder County District Court on 1

March 29, 2011. Defendant removed the case to this Court. See Civil Action No. 11-cv-1142-

CMA-BNB. On July 5, 2011, Plaintiff voluntarily withdrew his initial Complaint from this Court

and then re-filed it in Boulder County District Court after changing the Complaint’s damages

language.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02306-WJM-KLM

LARRY D. FREDERICK,

Plaintiff,

v.

HARTFORD UNDERWRITERS INSURANCE COMPANY,

Defendant.

_____________________________________________________________________

ORDER GRANTING PLAINTIFF’S MOTION FOR REMAND

_____________________________________________________________________

This is a putative class action asserting claims against Defendant Hartford

Underwriters Insurance Company (“Hartford”) arising out of the sale of

uninsured/underinsured motorist coverage to residents of Colorado. Before the Court is

Plaintiff’s Motion for Remand to Boulder County, Colorado District Court. (ECF No. 14).

For the reasons set forth below, Plaintiff’s Motion for Remand is GRANTED. 

I. BACKGROUND

Plaintiff filed his Complaint in Boulder County, Colorado District Court on August

1, 2011. On September 9, 2011, Defendant filed a Notice of Removal (ECF No.1 ), 1

removing the case to this Court based on diversity jurisdiction. See 28 U.S.C. § 1332. 

On September 30, 2011, Plaintiff filed a Motion for Remand arguing that the amount in

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In addition to unspecified compensatory damages, Plaintiff’s Complaint seeks 2

the following: “Award Plaintiff and the class members punitive damages at such time as they

may be properly pled and awarded, in an amount such that the total award for compensatory

and punitive damages does not exceed $4,999,999.99." (Comp.¶ 51(c.))

2

controversy was not sufficient to confer jurisdiction on this Court. (Motion (ECF No. 14.) 

On October 24, 2011, Defendant filed its Opposition to Plaintiff’s Motion for Remand

(Opp. (ECF No. 18), and Plaintiff filed his Reply in Support of his Motion for Remand on

November 7, 2011 (ECF No. 28).

II. ANALYSIS 

A federal district court has jurisdiction to resolve a class action civil lawsuit where

the amount in controversy exceeds $5,000,000, exclusive of interest and costs, and

where the parties are diverse and other requirements are satisfied. See 28 U.S.C. §

1332(d). Here, the only contested issue is the amount in controversy. Plaintiff argues

that the amount in controversy in under $5,000,000 and that this Court, therefore, lacks

jurisdiction. (Motion at 5-11.) Defendant counters that the amount stated in Plaintiff’s 2

Complaint is not controlling and that the amount in controversy exceeds $5,000,000.

(Opp. at 3-5.) 

In addressing the issue here, “courts must rigorously enforce Congress’ intent to

restrict federal jurisdiction in controversies between citizens of different states,” and

there is presumption against removal jurisdiction. Martin v. Franklin Capital Corp., 251

F.3d 1284, 1289 (10th Cir. 2001). Where “plaintiff and defendant clash about

jurisdiction, uncertainties are resolved in favor of remand.” Id. at 1290 (quoting Burns v.

Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)). Moreover, the party invoking

the Court’s jurisdiction has the burden of establishing such jurisdiction. Id.

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3

When a complaint is filed in federal court, “the sum claimed by the plaintiff

controls if the claim is apparently made in good faith” unless it is shown “to a legal

certainty that the claim is really for less than the jurisdictional amount to justify

dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). 

When a case is removed from state court to federal court “the status of the case as

disclosed by the plaintiff’s complaint is controlling.” Id. at 291. Thus, for the purposes

of removal, “[t]he amount in controversy is ordinarily determined by the allegations of

the complaint, or, where they are not dispositive, by the allegations in the notice of

removal.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). Accordingly, “if

the in-state plaintiff wishes to remain in state court, all it needs to do is to refrain from

alleging any particular sum in its prayer for relief (assuming that is permitted, as it often

is, under state court rules of procedure).” McPhail v. Deere & Co., 529 F.3d 947, 953

(10th Cir. 2008). 

A number of courts have held that where the plaintiff alleges that damages are

less than the required amount for diversity jurisdiction, a defendant must prove “to a

legal certainty” that the amount in controversy is actually more than what the plaintiff

has stated. See Burns, 31 F.3d at 1095; Morgan v. Gay, 471 F.3d 469, 473 (3d Cir.

2006); Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 1000 (9th Cir. 2007). Other

courts, however, have held that the defendant need only prove jurisdictional facts by a

preponderance of the evidence rather than a “legal certainty.” See, e.g., Bell v.

Hershey Co., 557 F.3d 953 (8th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506

(7th Cir. 2006); De Aguilar v. Boeing Company, 47 F.3d 1404 (5th Cir. 1995). 

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Other than different parties, the complaint in Schatke and the instant Complaint 3

appear to be identical, as both complaints arise from the same underlying insurance

controversy. (Motion at 1-3). 

The Court declines to presume bad faith on the part of Plaintiff in bringing his 4

Complaint for just under the $5,000,000 jurisdictional requirement. It is well recognized that a

plaintiff is the “‘master of the claim’ and may prevent removal [to federal court] by choosing not

to plead a federal claim even if one is available.’” Schmeling v. NORDAM, 97 F.3d 1336, 1339

(10th Cir. 1996) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)); St. Paul Mercury

Indemnity, 303 U.S. at 294 (contemplating that a plaintiff may legitimately seek less than the

jurisdictional amount in order to stay in state court).

4

While the Tenth Circuit has not had occasion to address the standard to be

applied in these circumstances, this Court recently analyzed a near identical complaint

and motion for remand in Schatke v. Progressive Cas. Ins. Co., 11-cv-02305-MSKKMT, 2011 WL 5834748 (D. Colo. Nov. 18, 2011). In Schatke, Unites States District 3

Judge Marcia S. Krieger, after a thorough analysis, granted Plaintiff’s motion to remand

reasoning that “[i]t is not necessary [to] determine whether a preponderance of the

evidence or “proof to a legal certainty” is applicable [because] . . . regardless of the

standard of proof, [Defendant] has not established facts demonstrating that the current

amount in controversy exceeds $5 million.” Id. at *3.

As in Schatke, the Court finds that Defendant here has not established facts

demonstrating that the current amount in controversy exceeds $5,000,000. The

Complaint here, as in Schatke, claims recovery not to exceed $4,999,999.99. Id. The

Court takes this statement at face value. Furthermore, while Plaintiff may request 4

punitive damages, Plaintiff has also expressly stated that any award will be voluntarily

limited so when combined with compensatory damages, will not exceed the amount

sought in the Complaint. (Reply at 5-9.) As such, Defendant’s contention that total

Case 1:11-cv-02306-RM-KLM Document 34 Filed 03/13/12 USDC Colorado Page 4 of 5
5

damages might exceed the federal jurisdictional floor is entirely speculative. See

Schatke, 2011 WL 5834748, at *3. 

Accordingly, Defendant has not shown that the amount in controversy meets the

statutory requirement for exercise of federal court jurisdiction. Plaintiff’s Motion for

Remand should therefore be granted.

III. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiff’s Motion for Remand to Boulder County, Colorado District Court (ECF

No. 14) is GRANTED.

Dated this 13 day of March, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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