IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LATOYA SEALS WEBB, )

 )

Plaintiff, )

)

vs. ) CIVIL ACTION 09-00270-CG-B

 )

CUNA MUTUAL GROUP, a/k/a, )

CUNA MUTUAL SOCIETY, )

)

Defendant. )

REPORT AND RECOMMENDATION

This matter, which was referred to the undersigned Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1)(B), is before the Court on

Plaintiff’s Motion to Remand. (Doc. 25). Upon review of the

referenced motion and Defendant’s brief in opposition, the

undersigned RECOMMENDS that Plaintiff’s Motion to Remand be DENIED.

 I. Background

Plaintiff Latoya Seals Webb filed on April 8, 2009, a

Complaint in the Circuit Court of Mobile County, Alabama, against

CUNA Mutual Group, and/or CUNA Mutual Insurance Society

(hereinafter “CUNA”). In the Complaint, Plaintiff alleges that she

is the widow of Kenya D. Webb, who had a life insurance policy in

full force and effect with CUNA at the time of his death.

According to Plaintiff, she is listed as the beneficiary on the

policy, and as such, she is entitled to the proceeds under the

policy. Plaintiff argues that CUNA breached the terms of the

policy by failing to pay the benefits to her, as beneficiary, upon

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 1 of 13
2

demand, following Mr. Webb’s death. (Doc. 1-2). 

On May 14, 2009, Defendant CUNA filed a Notice of Removal

pursuant to 28 U.S.C. § 1331. Defendant contends this Court has

federal jurisdiction over Plaintiff’s claim based on diversity of

citizenship. (Doc. 1). Defendant further avers that the amount in

controversy exceeds $75,000 as the Accidental Death & Accidental

Dismemberment Insurance policy at issue provides for benefits of

$77,000, i.e. $2,000 in basic coverage and $75,000 in additional

coverage in the event of an accidental death. (Doc. 1 at 2).

Defendant attached a copy of the insurance policy as Exhibit 1 to

its Notice of Removal. The page of the policy entitled

“Certificate of Insurance” sets forth the amount of insurance

payable as follows: a “basic amount” of $2,000 if the insured is

under age 70, and an additional amount of $75,000 if the insured is

under age 70. (Doc. 1-1 at 6). The Enrollment Form attached to

the insurance policy lists Mr. Webb’s date of birth as July 20,

1977. (Doc. 1-1 at 13). 

Plaintiff filed an “Answer to Defendant’s Notice of Removal”

on May 15, 2009. (Doc. 8). In the “Answer,” Plaintiff advises that

on the same date, she filed an Amended Complaint in state court to

reflect that she was seeking “no more than $75,000 in damages.” In

an Order dated May 18, Chief Judge Callie V. S. Granade observed

that Plaintiff filed her Amended Complaint in state court, after

the case had been removed, and held that since Plaintiff had not

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 2 of 13
3

sought to have the case removed, and Defendant had filed a

responsive pleading, the Court would treat Plaintiff’s “Answer” as

a motion to amend the complaint. Defendant was given until May 26,

2009 to file any opposition to Plaintiff’s Motion. (Doc. 10)

Defendant filed a Response opposing Plaintiff’s motion. (Doc. 11).

In its Response, Defendant argues that there exist complete

diversity of citizenship among the parties, and that the insurance

proceeds insurance at issue total $77,000; thus, satisfying the

jurisdictional threshold. Defendant also argues that Plaintiff’s

belated attempt to amend her Complaint, after removal, in an effort

to defeat federal jurisdiction should be rejected because events

occurring after removal which reduce the recoverable damages below

the monetary threshold are not sufficient to divest the Court of

its federal jurisdiction. (Doc. 11, 2-3). 

In an Order entered on July 20, 2009 (Doc. 17), Chief Judge

Granade held that “. . . as long as subject matter jurisdiction

attached at the time of the removal, the plaintiff cannot later

absolve that jurisdiction by waiver or amendment.” (Doc 17 at 2).

Accordingly, Chief Judge Granade held that Plaintiff could amend

her Complaint; however, the amendment would not affect the Court’s

jurisdiction. (Doc. 17 at 2).

On September 30, 2009, Plaintiff filed a Motion to Remand.

(Doc. 25). In her Motion, Plaintiff argues that this case should

be remanded because her Amended Complaint places her damages at

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 3 of 13
4

$75,000. (Doc. 25) Defendant in turn filed a Response opposing

Plaintiff’s Motion on the ground that federal jurisdiction attached

at the time of removal, and that post-removal events, such as

amending the Complaint, cannot oust this Court’s jurisdiction once

it attaches. (Doc. 27).

II. Statement of the Law.

A removing defendant must establish the propriety of removal

under 28 U.S.C. § 1441, and therefore must establish the existence

of federal jurisdiction. See Friedman v. New York Life Ins. Co.,

410 F.3d 1350, 1353 (llth Cir. 2005)(“[i]n removal cases, the

burden is on the party who sought removal to demonstrate that

federal jurisdiction exists”)(citation omitted). Because removal

infringes upon state sovereignty and implicates central concepts of

federalism, removal statutes must be construed narrowly, with all

doubts resolved in favor of remand. See University of South

Alabama v. American Tobacco Co., 168 F.3d 405, 411 (llth Cir.

1999).

Federal Courts have limited subject matter jurisdiction, and

are empowered to decide only certain types of cases. See Morrison

v. Allstate Indemnity Co., 228 F.3d 1255, 1260-61 (llth Cir. 2000).

In particular, lower federal courts can hear only cases for which

Congress has granted them jurisdiction. Once a federal court

determines that no grant of jurisdiction applies in a particular

case, it must immediately dismiss the case for lack of

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 4 of 13
5

jurisdiction. See Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327,

1331 n.6(llth Cir. 2001). 

Removal statutes are construed narrowly and jurisdictional

uncertainties are resolved in favor of remand. Burns v. Windsor

Ins. Co., 31 F. 3d 1092, 1095 (llth Cir. 1994) (“While a defendant

does have a right, given by statute, to remove in certain

situations, plaintiff is still the master of his own

claim”)(citations omitted). In removal actions, the removing party

bears the burden of establishing jurisdiction. Diaz v. Sheppard,

85 F. 3d 1502, 1505 (llth Cir. 1996). Moreover, “[t]he removal

statute should be construed narrowly with doubt construed against

removal.” Id. A defendant may remove an action from state court

to federal court only if the action is one over which the federal

court possesses subject-matter jurisdiction. See 28 U.S.C. §

1441(a). 

Where the alleged basis for federal jurisdiction is diversity

under 28 U.S.C. § 1332, the removing defendant has the burden of

demonstrating that there is (1) complete diversity of citizenship;

and (2) an amount-in-controversy greater than $75,000. See 28

U.S.C. § 1332(a). In cases where damages are not specified by

Plaintiff, the removing party must establish the amount in

controversy by a preponderance of the evidence. Lowery v. Alabama

Power Co., 483 F.3d 1184, 1208-09, 1210 (11th Cir. 2007); See also

Wallace v. Kentucky Fried Chicken, No. 08-248, 2008 U.S. Dist.

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 5 of 13
6

LEXIS 80151, at *10 (S.D. Ala. Oct. 9, 2008)(holding that the

burden rests on the defendant to show by a preponderance of the

evidence that the amount in controversy exceeds $75,000). 

The Court in Lowery held that when a motion to remand is filed

within 30 days of removal, the Court must review the propriety of

removal on the basis of the removing documents. See Lowery v.

Alabama Power Co., 483 F.3d at 1211. In that instance, if the

jurisdictional amount is stated clearly on the face of the

documents before the Court, or readily deducible from them, then

the court has jurisdiction. If not, the Court must remand. Id.

Thus, for challenges brought within 30 days, courts consider the

notice of removal and accompanying documents, which must

“unambiguously establish federal jurisdiction.” Id. at 1213.

However, in Lowery, the Court also explained that courts may

consider other documents where a plaintiff does not challenge the

removal on jurisdictional grounds until after judgment, or

challenges removal before judgement but after the 30 day period has

lapsed. Id. at 1214, n. 64. In such later challenges, the court

is no longer considering the propriety of the removal, but whether

subject matter jurisdiction exists, and so “the court may look to

any relevant information that the parties may present, up until the

time of the challenge to jurisdiction. Id. See also, Wallace v.

Kentucky Fried Chicken, No. 08-248, 2008 U.S. Dist. LEXIS 80151

(S.D. Ala. October 9, 2008). 

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 6 of 13
7

III. Analysis

In the present case, it is undisputed that minimal diversity

exists. Plaintiff is a citizen of Alabama, and Defendant is

incorporated in Iowa and has its principal place of business in

Wisconsin. (Doc. 1-4). It is also undisputed that Defendant

initiated this removal after receiving the Complaint without the

benefit of receiving any “other paper” from Plaintiff, and that the

face of the Complaint does not specify the total amount of damages

sought for breach of the insurance contract. The issue then

centers on whether Defendant has met its burden of proving the

jurisdictional amount by a preponderance of the evidence. 

As noted supra, in Plaintiff’s original Complaint filed in

state court, she did not specify the amount of damages sought.

Instead, she asserted that she is entitled to the proceeds of Mr.

Webb’s life insurance policy, and demanded judgment “. . . in an

amount in excess of the minimum jurisdictional limits of the court,

plus interest, attorney’s fees and costs.” (Doc. 1-3 at 5).

Defendant avers that the amount in controversy exceeds $75,000,

exclusive of interest and costs because, in claiming entitlement to

the proceeds of the insurance policy, Plaintiff is seeking the

value of the policy, or $77,000. According to Defendant, the value

of the CUNA insurance policy in which Latoya A. Seals is the named

beneficiary is $77,000, which amount is calculated based upon $2000

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 7 of 13
8

in basic coverage and $75,000 in additional coverage because Mr.

Webb was under age 70 at the time of his death. (Doc. 1-1 at 6-

13). 

Plaintiff does not dispute that the value of the insurance

policy is $77,000, nor does she dispute that under the policy, the

beneficiary is entitled to $77,000 in the event of the accidental

death of the insured. Instead, Plaintiff argues that by virtue of

the fact that she amended her Complaint so as to waive her right to

receive in excess of $75,000, this Court is divested of

jurisdiction. 

Notwithstanding Plaintiff’s arguments to the contrary, the

undersigned finds that as required by Lowery, Defendant has

established by a preponderance of the evidence that the amount in

controversy exceeds $75,000. Plaintiff, in her original Complaint,

sought the proceeds under the life insurance policy, and Defendant

has presented the insurance policy which clearly reflects that the

accidental death benefits payable under the policy are $77,000, an

amount in excess of the jurisdictional limit of $75,000.

Plaintiff’s assertion that this case should be remanded

because her Amended Complaint makes clear that she is seeking less

than the jurisdictional amount must fail. While Plaintiff did not

specify a damage amount in her original Complaint, she clearly

alleged that as Mr. Webb’s beneficiary, she is entitled to the

proceeds under his life insurance policy, which as noted supra,

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 8 of 13
1

In Poore, the Eleventh Circuit held that if a district court has

subject matter jurisdiction over a diversity action at the time

of removal, subsequent acts do not divest the court of its

jurisdiction over the action. Thus, the plaintiffs’ amendment of

9

Defendant has established as $77,000. Plaintiff’s post-removal

amendment, wherein she waives any and all other benefits, such as

basic coverage, interest and costs, and expressly limits her claim

for damages to $75,000 is not a clarification of the damages

sought, but a clear attempt to reduce the damages initially sought,

to a damage amount below the jurisdictional level, in an effort to

circumvent this Court’s jurisdiction. See Bankhead v. American

Suzuki Motor Corporation, 529 F. Supp. 2d 1329, 1334 (M.D. Ala.

2008). (“Where, as here, ‘the plaintiff after removal, by

stipulation, by affidavit, or by amendment of his pleadings,

reduces the claim below the requisite amount, this does not deprive

the district court of jurisdiction.’”) The “existence of federal

jurisdiction ordinarily depends on the facts as they exist when the

complaint is filed.” Ferry v. Bekum Am. Corp., 185 F. Supp. 2d

1285, 1287-1288 (M.D. Fla. 2002); Saint Paul Mercury Indem. Co. v.

Red Cab Co., 303 U.S. 283, 293, 58 S. Ct. 586, 592, 82 L.Ed. 845

(1938)(“Events occurring subsequent to removal which reduce the

amount recoverable, whether beyond the plaintiff’s control or the

result of his own volition, do not oust the district court’s

jurisdiction once it has attached.” ; accord Poore v. American

Amicable Life Ins. Co. Of Texas1, 218 F.3d 1287, 1290-1291 (11th.

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 9 of 13
their complaint to reduce the amount in controversy was not

sufficient to divest the court of diversity jurisdiction. 218

F.3d at 1290-1291.

10

Cir. 2000), overruled on other grounds. See also, Leonard v.

Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002)(the

critical time in a challenge to the subject matter jurisdiction of

the district court is the date of removal, and subsequent events,

even the loss of the required amount in controversy, does not

divest the court of jurisdiction). Because subject matter

jurisdiction attached at the time of removal based upon Plaintiff’s

original Complaint, and the insurance policy, Plaintiff’s Amended

Complaint, which was filed after the case was properly removed,

does not deprive this Court of jurisdiction. 

IV. Conclusion

Construing the removal statue strictly and resolving all

doubts in favor of remand, in accordance with University of South

Alabama, 168 F.3d at 411, the court finds that Defendant has

established the propriety of removal under 28 U.S.C. § 1441, and

has established the existence of federal jurisdiction.

Accordingly, the undersigned RECOMMENDS that the Motion to Remand

this case to the Circuit Court of Mobile County, Alabama is due to

be DENIED. 

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 10 of 13
11

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 7th day of January, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 11 of 13
2

The Court’s Local Rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

12

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)©; Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days2 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 12 of 13
13

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14)days of being served with a copy of the statement of objection.

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00270-CG-B Document 30 Filed 01/07/10 Page 13 of 13