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Corina Apuakehau v. Mutual of Omaha

July 11, 2012

CORINA APUAKEHAU,
PLAINTIFF,
v.
MUTUAL OF OMAHA INSURANCE COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO REMAND

FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO REMAND

Before the Court is Plaintiff Corina Apuakehau's Motion to Remand (Doc. 9). The Court heard this Motion on July 9, 2012. After careful consideration of the Motion, the supporting and opposing memoranda, and the arguments of counsel, the Court finds and recommends that Plaintiff's Motion be DENIED.

FACTUAL BACKGROUND

On January 27, 2011, Defendant T.B. Lyons conducted a Cancer Policy sales presentation to Hawaii County Police Officers, including Plaintiff. (Complaint ¶ 5.) Defendant Lyons stated, among other things, "that the 'policy benefit' of $72,464 (in Plaintiff's case) would be paid in full." (Id. ¶ 6.) Plaintiff purchased the Cancer Policy on February 1, 2012. (Id. ¶ 10.) The "original application stated that the 'Base Policy Benefit Amount' was $72,464.00." (Id. ¶ 11.)

A few months later, Plaintiff suffered pelvic pain and her doctor informed her that she had "a type of cancer that invariably kills the person if not treated." (Id. ¶ 14.) After having a partial hysterectomy, Plaintiff sought benefits under the Cancer Policy from Defendant Mutual of Omaha Insurance Company. (Id. ¶¶ 15, 18.) Her claim for benefits was denied. (Id. ¶¶ 19-20.)

On April 2, 2012, Plaintiff filed this action in state court against Defendants Lyons and Mutual of Omaha Insurance Company. The Complaint alleges that Plaintiff "had a right to rely on Lyons when he told the police officers that they would be paid full policy benefits when their own doctors diagnose cancer." (Id. ¶ 22.) She also states that "she would not have purchased the Cancer Policy" if she knew that she would not get the full policy benefits. (Id. ¶ 26.)

Plaintiff's Complaint asserts claims for: (1) bad faith, (2) negligent and/or intentional infliction of emotional distress, (3) breach of contract, (4) unfair and deceptive trade practices, and (5) negligent or intentional misrepresentation. She prays for general damages, special damages, compensatory and consequential damages, punitive damages, treble damages, pre- and post-judgment interest, and attorney's fees and costs.

On May 2, 2012, Defendants removed this case to federal court on the basis of diversity jurisdiction. Plaintiff now seeks remand, arguing that Defendants have not met their burden of establishing that the "amount in controversy" exceeds the jurisdictional threshold of $75,000.

DISCUSSION

I. The Court Finds and Recommends that Remand be Denied. Defendants removed this case from state court, asserting in the Notice

of Removal that this Court has diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. Under that statute, "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). The parties dispute whether the amount in controversy exceeds $75,000.

In determining the amount in controversy in a removed case, district courts "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). "When it is not facially evident from the complaint that more than $75,000 is in controversy, a defendant must prove, by a preponderance of the evidence, that the amount in controversy exceeds $75,000." Miyasato v. Hyatt Corp., CV. NO. 11-00716 JMS-KSC, 2012 WL 874873, at *3 (D. Haw. Feb. 16, 2012) (citing Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)). "In other words, a defendant must prove that it is 'more likely than not' that the amount in controversy exceeds $75,000." Id. (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). This "burden is not 'daunting,' as courts recognize that under this standard, a removing defendant is not obligated to 'research, state, and prove the plaintiff's claims for damages.'" Id. (citation omitted).

"When assessing 'the amount in controversy, a court must assume that the allegations of the complaint are true and that a jury will return a verdict for the plaintiff on all claims made in the complaint.'" Id. (citing Korn, 536 F. Supp. 2d at 1205). "It is the amount placed 'in controversy by a plaintiff's complaint that is the ultimate ...


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