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Pivtchev v. State Farm Mutual Auto Insurance Co.

United States District Court, M.D. Pennsylvania

July 1, 2019

TAMI PIVTCHEV, Plaintiff
v.
STATE FARM MUTUAL AUTO INSURANCE COMPANY, Defendant

          MEMORANDUM

          JAMES M. MUNLEY UNITED STATES DISTRICT COURT.

         Before the court for disposition is Plaintiff Tami Pivtchev's motion to remand this matter to the Luzerne County Court of Common Pleas. The motion has been fully briefed and is ripe for disposition.

         Background

         Defendant State Farm Mutual Auto Insurance Company insured plaintiff pursuant to an automobile insurance agreement. (Doc. 1-2, Compl. ¶ 4). On June 2, 2016, plaintiff was involved in an automobile accident in Hazleton, Pennsylvania. (Id. ¶ 8-10). Plaintiff suffered severe personal injuries due to the accident including a cervical herniation causing radiculopathy in the right arm and hand. (Id. ¶ 13). Another driver caused the accident, but that driver's insurance was insufficient to compensate plaintiff for her injuries. (Id. ¶ 20).

         Plaintiff sought underinsured motorist benefits from defendant, which it has not paid. (Id. ¶ 23-24). The underinsured motorists benefit limit on the policy is $25, 000.00. (Id. ¶ 21).

         Based upon these facts plaintiff instituted the instant lawsuit on November 12, 2018 by filing a two-count complaint in the Court of Common Pleas for Luzerne County. The two counts are breach of contract and bad faith. Plaintiff seeks compensatory damages, interest, punitive damages and counsel fees. (Id. ¶ 56).

         On January 25, 2019, defendant filed a “Notice of Removal” of the case to this court. (Doc. 1). Plaintiff has filed a motion to remand the case to Luzerne County. (Doc. 3). The parties have briefed this motion, and it is ripe for disposition.

         Discussion

         Federal courts, being courts of limited jurisdiction, have a continuing duty to satisfy themselves of jurisdiction before addressing the merits of a case. Packard v. Provident Nat=l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993) cert. denied sub nom Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993). Generally, a defendant can remove a civil action originally filed in state court if the federal court would have had original jurisdiction to address the matter. 28 U.S.C. § 1441. Once a case is removed, the federal court may remand if the court determines that it lacks federal subject matter jurisdiction. 28 U.S.C. § 1447(c).[1] Removal statutes are to be strictly construed against removal, and all doubts should be resolved in favor of remand. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

         The burden of establishing jurisdiction in the removal situation rests with the defendant. Kaufman v. Allstate N.J., Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009) (“We require the party seeking to remove to federal court to demonstrate federal jurisdiction.”). In the notice of removal, the defendant indicates that this court has diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1, Notice of Removal ¶ ¶ 12-13). Pursuant to this statutory section, jurisdiction is proper in federal district court where the action involves citizens of different states and an amount in controversy, exclusive of interest and costs, in excess of $75, 000.00. 28 U.S.C. § 1332(a).

         Plaintiff's motion to remand raises three issues: a procedural defect in the defendant's notice of removal, a lack of diversity of citizenship between the parties, and the failure to meet the amount in controversy requirement. We will address these issues in turn.

         A. Procedural defect

         The first issue plaintiff raises involves a procedural defect in the original notice of removal. The law provides that “[a] defendant . . . desiring to remove any civil action from a State court shall file in the district court . . . a copy of all process . .” within thirty (30) days as part of its notice of removal. 28 U.S.C. § 1446(a).

         In the instant case, plaintiff argues that the notice of removal did not include the Sheriff's return of service of process form which was a part of the state court case. Defendant acknowledges that it did not file the service of process form. To remedy its ...


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