United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This insurance coverage dispute is before me on Plaintiff Steve Ogburn's Motion for Remand [Docket No. 16]. Mr. Ogburn asks the Court to remand this case to state court on the grounds that the amount in controversy requirement of 28 U.S.C. § 1332(a) is not satisfied. I have reviewed the motion and all related pleadings and exhibits. Oral argument would not materially assist me in determining the motion. For the following reasons, I DENY the motion.
On July 30, 2014, Mr. Ogburn filed this case in state court in Boulder, Colorado. Mr. Ogburn alleges that he sustained injuries in a car accident caused by a hit and run driver in September 2011; that these injuries are covered by the uninsured/underinsured motorist ("UIM") coverage of an auto insurance policy that Defendant American National Property & Casualty Company ("American") issued to him; and that he made a claim under that policy which American refuses to pay. He brings a single count against American, for breach of contract, and seeks money damages. Compl. ¶¶ 3, 20, 24 [Docket No. 1-5]. In accordance with Colorado Rule of Civil Procedure 8(a), his complaint does not identify a specific sum he is seeking from American. It does, however, list numerous categories of damages. See id. at 4 (prayer for relief stating that Mr. Ogburn is seeking damages for "present and future economic loss"; "medical expenses, past and future"; "permanent impairment, injuries, and/or disfigurement, limitations and/or disabilities of the body and/or mind"; "pain and suffering, past and future"; "loss of enjoyment of life and/or the capacity of life [sic]"; and "past and future medical care, " together with attorney's fees, court costs, expert witness fees, and statutory interest).
On August 22, 2014, American filed its notice of removal [Docket No. 1] with this Court, asserting jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). American stated that both the residency and amount in controversy requirements are satisfied because American is a citizen of Missouri, Mr. Ogburn is a citizen Colorado, and the amount in controversy exceeds $75, 000, exclusive of interest and costs. American referenced a "case cover sheet" attached to Mr. Ogburn's complaint and signed by his counsel. A box is checked on the cover sheet indicating that "[a] monetary judgment over $100, 000 is sought by any party against any other single party, " exclusive of "interest and costs." District Court Civil (CV) Case Cover Sheet at 2 [Docket No. 1-3].
On September 15, 2014, Mr. Ogburn filed the instant motion. American's opposition [Docket No. 18] and Mr. Ogburn's reply [Docket No. 21] followed. Mr. Ogburn does not contest diversity of citizenship but contends that American has not met its burden of proving the amount in controversy. He argues that American may not rely on the case cover sheet, but must rely on the complaint itself or on the removal notice. With respect to the complaint, he argues that its allegations regarding damages are too vague to determine the amount in controversy. As for the notice of removal, he says it is also no help to American because it relies solely on the case cover sheet. In its opposition, American submits new evidence: (1) an affidavit from its claim handler saying that Mr. Ogburn demanded more than $75, 000 before he filed this suit; and (2) an affidavit from American's counsel saying that American offered Mr. Ogburn more than $75, 000 to settle this lawsuit after it filed its notice of removal. Mr. Ogburn argues that the Court cannot consider these affidavits because they are not part of the complaint or notice of removal. American seeks discovery on the amount in controversy in the event I conclude it has not met its burden; Mr. Ogburn opposes this request.
II. Duty to Confer
The parties do not dispute that Mr. Ogburn did not confer before moving for remand. American argues that his motion should be denied for that reason alone. D.C.COLO.LCivR 7.1(a) provides that "[b]efore filing a motion, counsel for the moving party or an unrepresented party shall confer or make reasonable good faith efforts to confer with any opposing counsel or unrepresented party to resolve any disputed matter." Subsection (b) lists exceptions to this requirement, including motions brought under Federal Rule of Civil Procedure 12. A "motion for remand based on lack of jurisdiction is essentially a motion to dismiss under Rule 12." Julius v. Metro. Cas. Ins. Co., No. 07-CV-02460-WDM-CBS, 2008 WL 1806134, at *2 (D. Colo. Apr. 21, 2008). Accordingly, it was not necessary for Mr. Ogburn to confer with American before filing his motion. Id. I also note that the Court has an independent obligation to determine whether subject matter jurisdiction exists. Id. (citing Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006)). Accordingly, I will consider the merits of Mr. Ogburn's motion for remand.
III. Merits of Remand Motion
Remand to state court is required "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c); see Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006). Here, American alleges subject matter jurisdiction based on diversity of citizenship, which requires that the parties be "citizens of different States" and that "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs." 28 U.S.C. § 1332(a). The parties agree that they are citizens of different states and no facts suggest otherwise. Therefore, the only issue I consider is the amount in controversy.
A. Burden of Proof
The removing defendant has the burden of proving facts showing that the amount in controversy "may" exceed $75, 000. McPhail v. Deere & Co., 529 F.3d 947, 953-54 (10th Cir. 2008); accord Roadcap v. Auto-Owners Ins. Co., No. 14-CV-01897-PAB-CBS, 2014 WL 3952802, at *2 (D. Colo. Aug. 12, 2014). The defendant must prove these "jurisdictional facts" by a preponderance of the evidence. McPhail, 529 F.3d at 953-54; 28 U.S.C. § 1446(c)(2)(A). A defendant "is entitled to stay in federal court unless it is legally certain' that less than $75, 000 is at stake. If the amount is uncertain then there is potential controversy, which is to say that at least $75, 000 is in controversy in the case." McPhail, 529 F.3d at 954. The amount in controversy is determined at the time the case is removed to federal court. Emland Builders, Inc. v. Shea, 359 F.2d 927, 929 (10th Cir. 1966); accord Roadcap, 2014 WL 3952802, at *2.
Where, as here, the complaint does not explicitly demand more than $75, 000, "defendants must show how much is in controversy through other means." McPhail, 529 F.3d at 955. This includes: (1) "an estimate of the potential damages from the allegations in the complaint, " even though no sum certain is alleged; (2) "affidavits from the defendant's employees or experts, about how much it would cost to satisfy the plaintiff's demands"; and (3) "a plaintiff's proposed settlement amount" to the extent it "appears to reflect a reasonable estimate of the plaintiff's claim." 529 F.3d at 955-56 (internal citations and quotation marks omitted). This "list is not exclusive; any given proponent of federal jurisdiction may find a better way to establish what the controversy between the parties amounts to." Id. at 954 (quoting Meridian Security Ins. Co. v. Sadowski, 441 ...