United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
Miller, Senior United State District Judge.
before this court is Plaintiff Antonio Diaz's motion to
remand (Dkt. 4) and Defendant GeoVera Specialty Insurance
Company's response (Dkt. 6). Plaintiff did not file a
reply to Defendant's response. Having considered the
motion, response, and applicable law, the court finds that
Plaintiff's motion should be DENIED.
sued Defendant on August 22, 2019, in the 80th Judicial
District Court of Harris County, Texas, under Cause No.
2019-58620. See Dkt. 1-3, Ex. C (Plaintiff's
Original Petition) (“Pet.”). Plaintiff alleges
that “Defendant improperly denied and/or underpaid the
claim.” Pet. ¶ 13. Plaintiff brings claims of
breach of contract and various violations of the Texas
Insurance Code-including prompt payment of claims and bad
faith-seeking actual damages and attorney fees. Id.
¶¶ 17-28. Defendant timely removed the action to
this court on October 10, 2019. Dkt. 1. Plaintiff timely
seeks remand to state court. Dkt. 4.
courts have original 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(a)(1). “The party seeking
to assert federal jurisdiction, in this case [Defendant], has
the burden of proving by a preponderance of the evidence that
subject matter jurisdiction exists.” New Orleans
& Gulf Coast Ry Co. v. Barrois, 533 F.3d 321, 327
(5th Cir. 2008). “Any ambiguities are construed against
removal because the removal statute should be strictly
construed in favor of remand.” Manguno v.
Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing Acuna v. Brown & Root,
Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
courts must “remain vigilant to the potential for
manipulation by the plaintiff who prays for damages below the
jurisdictional amount even though he knows that his claim is
actually worth more.” St. Paul Reinsurance Co.,
Ltd. v. Greenberg, 134 F.3d 1250, 1254 (5th Cir. 1998).
“The court looks to the face of the plaintiff's
original petition to evaluate the amount in
controversy.” Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1336 (5th Cir. 1995). “When the
plaintiff's complaint does not allege a specific amount
of damages, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
exceeds [the jurisdictional amount].” De Aguilar v.
Boeing Co. (De Aguilar I), 11 F.3d 55, 58 (5th Cir.
1993) (citations omitted). “[I]f a defendant can show
that the amount in controversy actually exceeds the
jurisdictional amount, the plaintiff must be able to show
that, as a matter of law, it is certain that he will not be
able to recover more than the damages for which he has prayed
. . . .” De Aguilar v. Boeing Co. (De Aguilar
II), 47 F.3d 1404, 1411 (5th Cir. 1995).
amount in controversy is determined at the time of removal.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
492 (5th Cir. 1996). “‘Litigants who want to
prevent removal must file a binding stipulation or affidavit
with their complaints; once a defendant has removed the case,
St. Paul makes later filings irrelevant.'”
De Aguilar II, 47 F.3d at 1412 (quoting In re
Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per
curiam) (quoting St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed.
does not dispute that the parties are diverse. Dkt. 4.
Instead, Plaintiff argues that remand is proper because, the
“[pre-suit] demand was for $27, 863.24 and it made
clear that the insured would never demand an amount greater
than $75, 000.00, ” and because “Plaintiff
executed a Binding Stipulation to ensure that the amount in
controversy in this lawsuit could not and would never exceed
$75, 000.00.” Id. at 1. See also Dkt.
4-1 (Plaintiff's Demand Letter); Dkt. 4-2
(Plaintiff's Binding Stipulation). Defendant argues that
Plaintiff's “bare allegations of jurisdictional
facts that the amount in controversy is ‘less than $74,
000' are insufficient to defeat federal
jurisdiction” because Plaintiff cannot
“demonstrate ‘to a legal certainty that the claim
really is for less than the jurisdictional
amount.'” Dkt. 6 at 2 (quoting St. Paul,
134 F.3d at 1253). Defendant also points out that
Plaintiff's binding stipulation was executed
after removal, and therefore cannot defeat federal
court begins by looking at the face of the petition.
Allen, 63 F.3d at 1336. Plaintiff does not plead a
specific amount of damages. Instead, the petition states that
“Plaintiff seeks monetary relief under $100, 000.00,
including damages of any kind, penalties, costs, expenses,
pre-judgment interest, and attorney's fees. Tex.R.Civ.P.
47(c)(1). Further, Plaintiff specifies that he seeks a
maximum amount of damages that does not exceed the sum or
value of $74, 000, exclusive of interest and costs.”
Pet. ¶ 2. However, Plaintiff's bad faith claim
includes a claim to “exemplary and/or treble
damages.” Id. ¶ 25. Moreover, Plaintiff
does not state that he will not accept more than
$74, 000.00, only that he does not seek more than
that. Should Plaintiff be awarded his pre-suit demand of $27,
863.24, treble damages alone would exceed the jurisdictional
threshold. Thus, Defendant has shown by a preponderance that
the amount in controversy exceeds the jurisdictional amount.
See Lewis v. State Farm Lloyds, 205 F.Supp.2d 706,
708 (S.D. Tex. 2002) (Kent, J.) (finding that defendant
proved the propriety of removal even though Plaintiff only
sought $48, 890.26 in property damages, because plaintiff
also sought exemplary and treble damages).
to defeat federal diversity jurisdiction, “plaintiff
must be able to show that, as a matter of law, it is certain
that he will not be able to recover more than the damages for
which he has prayed . . . .” De Aguilar II, 47
F.3d at 1411. Because Plaintiffs binding stipulation was
executed on November 5, 2019 (Dkt. 4-2 at 2), after
removal, it has no legal effect. Id. at 1412.
Moreover, Plaintiffs demand letter, although relevant, is
insufficient to prove “as a matter of law” that
he cannot recover damages in excess of $75, 000. Id.
at 1411. Accordingly, Plaintiffs motion must be denied.