Diffin v. First National Insurance Company of America
| Cathy Diffin |
| First National Insurance Company of America |
| 4:2018cv03152 |
| November 21, 2018 |
| US District Court for the District of South Carolina |
| R Bryan Harwell |
| Insurance |
| 28 U.S.C. ยง 1441 |
| Both |
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| Document Text |
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| Filing 11 DELETION OF DOCKET ENTRY NUMBER 10 Reason: Filed in error. Deleted at request of filer after filing. (lsut, ) |
| Filing 9 STIPULATION of Dismissal without prejudice by Cathy Diffin. (Duncan, William) (Main Document 9 replaced on 12/3/2018 to replace incorrect document with correct document as provided by filing user) (lsut, ). |
| Filing 8 RESPONSE TO ORDER TO SHOW CAUSE by First National Insurance Company of America. (Attachments: #1 Exhibit A-letter advising of potential UIM claim, #2 Exhibit B-October 2 2018 letter from Volkswagon)(Templeton, Morgan) |
| Filing 6 SUA SPONTE TEXT ORDER TO SHOW CAUSE: The Defendant removed this case from state court pursuant to 28 U.S.C. 1441 and 1446. Under 1441(a), a defendant is permitted to remove a case to federal court if the court would have had original jurisdiction over the matter. District courts have original jurisdiction "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C. 1332(a)(1). In the instant case, the Defendant bases federal jurisdiction upon diversity jurisdiction pursuant to 1332. However, the Plaintiff did not specify any monetary amount of damages or clearly allege the jurisdictional amount in the Complaint, and the Defendant's notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount. Thus, the amount in controversy is unclear, and this Court may lack diversity jurisdiction. Removal statutes are strictly construed against removal, and any doubts concerning the propriety of removal must be resolved in favor of retained state court jurisdiction. Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993). In addition,"[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper." In Re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006) (citation omitted). This includes establishing compliance with the removal statute requirements. See Marler v. Amoco Oil Co., 793 F. Supp. 656, 658-59 (E.D.N.C. 1992). Courts must narrowly interpret removal jurisdiction because of the significant federalism concerns that are raised by removing proceedings from state court. Id. Thus, all doubts are resolved in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). THEREFORE, IT IS ORDERED that, not later than five calendar days from the filing of this Order, Defendant shall brief the Court and SHOW CAUSE why this case should not be remanded to the State court for the foregoing reasons. Plaintiff shall file a response not later than five calendar days thereafter and, in that response, include a clarification as to whether Plaintiff intended to pursue, at the time of filing the original complaint, damages in excess of the jurisdictional amount of $75,000. If Plaintiff did not intend to pursue damages adequate to satisfy the jurisdictional threshold at the time of filing and if Plaintiff stipulates to such limitation having a binding effect, the Court will remand this matter to state court. Failure to comply with this order may result in dismissal without prejudice of Plaintiff's case. Signed by Honorable R Bryan Harwell on 11/26/2018. (tmcb, ) |
| Filing 5 CONFERENCE AND SCHEDULING ORDER. Rule 26(f) Conference Deadline 12/17/2018, 26(a) Initial Disclosures due by 12/31/2018, Rule 26 Report due by 12/31/2018, Motions to Amend Pleadings due by 2/25/2019, Plaintiffs ID of Expert Witness due by 3/26/2019, Defendants ID of Expert Witnesses Due by 4/25/2019, Records Custodian Affidavit due by 4/25/2019, Discovery due by 6/24/2019, Motions due by 7/9/2019, Rule 26(a)(3) Disclosures due by 9/23/2019, ADR Statement due by 8/9/2019, Mediation Due by 9/9/2019. Motions in limine must be filed at least three weeks prior to November 4, 2019. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 11/04/2019. Signed by the Honorable R Bryan Harwell on 11/26/2018. (lsut, ) Modified on 11/27/2018 to edit text (lsut, ). |
| Filing 4 ANSWER to Complaint (Notice of Removal) by First National Insurance Company of America. (lsut, ) |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by First National Insurance Company of America. (lsut, ) |
| Filing 1 NOTICE OF REMOVAL from Horry County Court of Common Pleas, case number 2018-CP-26-05781 (filing fee $400 receipt number 0420-8120487), filed by First National Insurance Company of America. (Attachments: #1 Exhibit A - Declarations Pages, #2 Exhibit B - State Court Pleadings) (lsut, ) |
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| Plaintiff: Cathy Diffin | |
| Represented By: | William Stuart Duncan |
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| Defendant: First National Insurance Company of America | |
| Represented By: | Stephanie Paige Brown |
| Represented By: | Morgan S Templeton |
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