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American Family Mutual Insurance Co. v. Johnson

February 27, 2006

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, A WISCONSIN CORPORATION, PLAINTIFF,
v.
KIMBERLY JOHNSON, DEFENDANT.



The opinion of the court was delivered by: Senior District Judge Richard P. Matsch

ORDER OF DISMISSAL WITHOUT PREJUDICE

This civil action was filed October 14, 2005, by the plaintiff insurance company, alleging jurisdiction under 28 U.S.C. § 1332 for its declaratory judgment action, asserting fraud and other violations of the provisions of a homeowners insurance policy in connection with a claim for a fire loss. On February 7, 2006, the defendant filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for the failure of the plaintiff to allege the amount in controversy as exceeding $75,000.00. Attached with the motion is the affidavit of defendant, Kimberly Johnson, setting forth in a judicial admission that she does not seek more than $75,000.00, exclusive of interest and costs and waiving any right to any further amount. The plaintiff filed its response, citing to St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938), a case in which the Supreme Court held that removal of a case by a defendant is effective to establish jurisdiction when the plaintiff has alleged the amount in controversy and is not defeated by the plaintiff's subsequent reduction in the amount. The case is not applicable here and the defendant's reply, filed February 24, 2006, affirmatively establishes that the maximum potential liability under the disputed policy is for actual cash value which the defendant has limited to below the jurisdictional amount. It is therefore

ORDERED that this civil action is dismissed without prejudice, for lack of jurisdiction.

Richard P. Matsch, Senior Judge

20060227

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