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CONRAD ASSOCS. v. HARTFORD ACCIDENT & INDEM. CO.

February 10, 1998

CONRAD ASSOCIATES, Plaintiff,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant.



The opinion of the court was delivered by: INFANTE

 I. INTRODUCTION

 Plaintiff Conrad Associates moves to remand on the grounds that the amount in controversy in this diversity case does not exceed $ 75,000. Plaintiff also seeks sanctions against Defendant Hartford Accident and Indemnity Company for improperly removing this case. For the reasons set forth below, plaintiff's motion to remand is GRANTED and plaintiff's motion for sanctions is DENIED.

 II. BACKGROUND

 On December 28, 1988, four anchor plates broke through the concrete deck of the shopping center's parking lot, and the owner's insurer filed suit against Conrad Associates, alleging defective construction. Plaintiff tendered its defense to Hartford, which Hartford refused. Plaintiff contributed $ 16,500 towards the settlement of that case, and spent approximately $ 40,000 defending the action.

 On August 19, 1997, plaintiff filed the instant action for breach of contract and breach of the implied covenant of good faith and fair dealing in the Superior Court for the County of Monterey. The complaint alleges that Conrad incurred $ 56,500.00 in expenses from Hartford's alleged breach of contract, seeks damages in the form of attorneys' fees and costs incurred in seeking policy benefits from Hartford, and punitive damages. Defendant received notice of the complaint on September 15, 1997, and filed a Notice of Removal based on diversity jurisdiction on October 14, 1997.

 III. LEGAL STANDARDS

 The removal statute, 28 U.S.C. § 1441, provides in part, "Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). District courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $ 75,000, exclusive of interest and costs. 28 U.S.C. § 1332. *fn1" If at any time before final judgment it appears that the district court lacks subject matter jurisdiction over a case that has been removed to federal court, the case must be remanded. 28 U.S.C. § 1447(c).

 In a motion to remand to state court, the party asserting federal jurisdiction has the burden of proof. "The burden of establishing federal jurisdiction is upon the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988) (citations omitted). "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (quotation omitted).

 In cases in which the existence of diversity jurisdiction depends on the amount in controversy, "the district court may consider whether it is 'facially apparent' from the complaint that the jurisdictional amount is in controversy." Singer v. State Farm Mutual Auto Ins. Co., 116 F.3d 373, 377 (9th Cir.1997), citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir.1995). If the complaint is silent on the amount of damages claimed, "the court may consider facts in the removed petition and may 'require the parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'" Singer, 116 F.3d at 377. A speculative argument regarding the potential value of the award is insufficient. Id. at 376; Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.1992). The amount in controversy includes claims for general and special damages (excluding costs and interests), including attorneys fees, if recoverable by statute or contract, and punitive damages, if recoverable as a matter of law. See Richmond v. Allstate Ins. Co., 897 F. Supp. 447 (S.D.Cal.1995); Miller v. Michigan Millers Ins. Co., 1997 WL 136242 (N.D.Cal.1997).

 IV. DISCUSSION

 Plaintiff asserts that Hartford cannot meet its burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional minimum of $ 75,000. Defendant contends that the amount in controversy, which includes contract damages in the amount of $ 56,500, plus attorneys fees, plus punitive damages, exceeds $ 75,000.

 Defendant advances three arguments in support of its contention that plaintiff's claim is worth more than $ 75,000. First, defendant contends that Conrad's refusal to stipulate to damages less than $ 75,000 "conclusively" establishes that plaintiff deems the amount in controversy to be in excess of $ 75,000. Second, defendant asserts that plaintiff's request for attorneys' fees incurred in seeking to enforce insurance benefits is likely to reach at least $ 20,000 by the conclusion of this litigation since the parties have agreed to have the issue of Hartford's duty to defend addressed in a motion for summary judgment. Third, defendant asserts that a punitive damage award ...


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