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Koerner v. Geico Casualty Co.

United States District Court, M.D. Pennsylvania

May 18, 2017

JUDITH KOERNER, Plaintiff,
v.
GEICO CASUALTY COMPANY, Defendant.

          MEMORANDUM

          Richard P. Conaboy Judge

         Pending before the Court is Plaintiff's Motion for Remand (Doc. 10) filed on April 5, 2017. With the motion, Plaintiff seeks remand on the basis that Defendant did not remove this case within the allowable time period. (Id.) The Court concludes the motion is properly denied.

         I. Background

         As set out in the Second Amended Complaint (the operative complaint in this action) the case arises from a motor vehicle accident which took place on May 4, 2016. (Doc. 8 ¶ 5.) Plaintiff alleges that she was injured when objects from an unidentified vehicle “were thrust into the roadway” on which Plaintiff was traveling and her car was forced off the road into a guardrail. (Id.) Plaintiff had a policy of automobile insurance with Defendant at the relevant time. (Doc. 8 ¶ 3.) Because Plaintiff sustained injuries and damages as a result of the accident, she sought uninsured motorist benefits under her policy with Defendant. (Doc. 8 ¶ 8.)

         Plaintiff originally filed a Complaint in the Pike County Court of Common Pleas on May 19, 2016. (See Doc. 1-1 at 4-6.) The Complaint does not quantify damages but states the following: “As a result of the subject accident, Plaintiff sustained damages caused by an unidentified and thus uninsured motorist” (Compl. ¶ 7; Doc. 1-1 at 5); “As a result of the damages sustained by Plaintiff in the underlying accident as aforesaid, Plaintiff is entitled to Uninsured Motorist benefits under the policy issued by the UM defendant herein” (Compl. ¶ 8; Doc. 1-1 at 5). Plaintiff makes no other claim of entitlement in the Complaint but in the ad damnum clause she states that “Plaintiff JUDITH KOERNER demands judgment against Defendant GEICO CASUALTY COMPANY, in the amount of damages she sustained as a result of the aforesaid that was caused by an unidentified and thus uninsured motorist, together with costs, disbursements, and all other relief deemed just and proper by the Court.” (Compl.; Doc. 1-1 at 5.)

         On February 22, 2017, Plaintiff filed an Amended Complaint in the Court of Common Pleas of Pike County. (Doc. 1-1 at 53-62.) The Amended Complaint contains the same provisions quoted above. (Am. Compl. ¶¶ 7, 8, ad damnum clause; Doc. 1-1 at 54.) The Amended Complaint adds individualized counts for “Breach of Contract” (Doc. 1-1 at 55) and “Bad Faith - Common Law and Statutory” (Doc. 1-1 at 56). Under the Breach of Contract count, Plaintiff alleges that Defendant “breached the terms and provisions of the policy of insurance by failing to make payment of uninsured motorist benefits” to her and states she “is entitled to recover uninsured motorist benefits from the defendant.” (Am. Compl. ¶¶ 17, 19; Doc. 1-1 at 56.) The Breach of Contract ad damnum clause is the same as previously quoted. (Doc. 1-1 at 56.) Under the “Bad Faith - Common Law and Statutory” count, Plaintiff alleges that Defendant “failed to comply with the implied covenants of good faith and fair dealing contained within the policy of insurance, ” and Defendant is liable to her for common law bad faith damages and statutory bad faith damages which may include punitive damages. (Am. Compl. ¶¶ 23, 25, 27-29; Doc. 1-1 at 57-58.) In succeeding paragraphs of the Amended Complaint, Plaintiff specifically states that Defendant is liable for punitive damages and she is entitled to recover them. (Am. Compl. ¶¶ 32, 36, 37; Doc. 1-1 at 60-61.) Ad damnum clause demands for the bad faith claim include the award of punitive damages. (Doc. 1-1 at 61.)

         Defendant filed the Notice of Removal on March 13, 2017, asserting that removal was appropriate based on diversity jurisdiction. (Doc. 1.) Stating that the policy limit of Uninsured Motorist coverage in the policy at issue is $15, 000, Defendant notes that Plaintiff first made a demand for punitive damages in the Amended Complaint and a demand for punitive damages generally satisfies the jurisdictional amount for diversity of citizenship purposes. (Id. at 2-3 (citing Golden v. Golden, 382 F.3d 348, 355 (3d Cir. 2004)).) Defendant asserts that the Notice of Removal is timely because it was filed within thirty (30) days of receipt by the defendant of service of a copy of an amended pleading from which it could first be ascertained that the case was removable on the basis of diversity jurisdiction. (Doc. 1 at 4 (citing 28 U.S.C. § 1446(b)).) Defendant explains that it was not until Plaintiff filed the Amended Complaint on February 22, 2017, and made a demand for punitive damages for the first time that it could be ascertained that the action became removable based on diversity jurisdiction (id. at 4).

         With the pending motion, Plaintiff asserts that the Notice of Removal was not timely filed. (Doc. 10.) She principally argues that, if this case is removable now, it was removable at the original Complaint because the amount in controversy in the original Complaint exceeded the jurisdictional minimum required for removal to federal court, and therefore the filing of the Amended Complaint did not restart the clock for the thirty-day time period under 28 U.S.C. § 1446. (See, e.g., Doc. 11 at 4-5.)

         II. Discussion

         As set out above, Plaintiff seeks remand to the Court of Common Pleas of Pike County because Defendant's Notice was not timely filed. (Doc. 11 at 9.) Defendant responds that the time for removal did not begin until Plaintiff filed her Amended Complaint, and, therefore, the Notice of removal was timely filed.

(Doc. 13-2 at 4.)

         The statutory provision at issue here is 28 U.S.C. § 1446 which governs the procedure for removal. Specifically, § 1446(b) addresses the general requirements regarding the time for filing a removal action.

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed ...

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