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Bencivengo v. Jewelry Insurance Brokerage of North America

United States District Court, D. South Carolina, Charleston Division

June 16, 2017

GARY BENCIVENGO and SUZANNE BENCIVENGO, Plaintiffs,
v.
JEWELRY INSURANCE BROKERAGE OF NORTH AMERICA and STATE NATIONAL INSURANCE COMPANY, INC., Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on plaintiffs Gary Bencivengo and Suzanne Bencivengo's (“the Bencivengos”) motion to remand. For the reasons set forth below, the court denies the motion to remand.

         I. BACKGROUND

         The instant suit arises from a jewelry loss. In 1989, Gary Bencivengo gave a diamond engagement ring to Suzanne Bencivengo that was insured for $23, 808.00 by defendants Jewelry Insurance Brokerage of North America, an insurance broker company headquartered in Kentucky, and State National Insurance Company, Inc., a Texas insurance company (collectively “defendants”).[1] The Bencivengos allege that the center diamond fell out of the ring and was lost, but defendants denied the Bencivengos' claim against the insurance policy.

         The Bencivengos filed an initial complaint in the Georgetown County Court of Common Pleas for breach of contract, estoppel, and insurer bad faith on November 9, 2015. In this initial complaint, the Bencivengos asked for actual damages of $23, 808.00 and for an unspecified amount of consequential and punitive damages. After an early mediation, defendants served a request for admissions on the Bencivengos asking whether the Bencivengos were seeking more than $75, 000 in damages. On August 23, 2016 the Bencivengos filed an amended complaint that added a cause of action for negligent misrepresentation, and changed the prayer of relief to ask for a declaratory judgment declaring the “wear and tear” policy exclusion to be ambiguous and therefore void. The amended complaint also added a cause of action for negligent misrepresentation. On September 15, 2016, the Bencivengos submitted responses to the Requests for Admission denying that they were seeking a maximum of $75, 000 in damages, and that the amount of damages could potentially exceed $75, 000. On September 22, 2016, defendants removed the case to this court.

         The Bencivengos filed the present motion to remand on September 30, 2016, and defendants responded on October 17, 2016. This motion has been fully briefed and is now ripe for the court's review.

         II. STANDARD

         As the parties seeking to invoke the court's jurisdiction, defendants have the burden of proving jurisdiction upon motion to remand. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (citing Mulcahy v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)). In deciding a motion to remand, the federal court should construe removal jurisdiction strictly in favor of state court jurisdiction. Id. “If federal jurisdiction is doubtful, a remand is necessary.” Mulcahy, 29 F.3d at 151 (citations omitted).

         III. DISCUSSION

         The Bencivengos move to remand, arguing that defendants' failure to remove within thirty days of the filing of the original complaint makes the Notice of Removal untimely. Pls.' Mot. 3. Defendants counter that it was only in September 2016-after the Bencivengos sought to file their amended complaint and answered the defendants' Requests for Admission-that defendants became aware “to a legal certainty” that the total amount in controversy exceeded $75, 000. Defs.' Mot. 3. Defendants assert that because the initial complaint was not removable on its face and the amended complaint was the first document from which they could “first [ascertain] that the case is one which is or has become removable, ” the Notice of Removal is timely. Defs.' Mot. 3. Thus, the only grounds upon which defendants have removed the case are the Bencivengos' responses to defendants' request for admission and the amended complaint.

         The procedure for removal is governed by 28 U.S.C. § 1446(b), which provides that “[t]he notice of removal . . . shall be filed within thirty days after the receipt by the defendant . . . of a copy of the initial pleading.” 28 U.S.C. § 1446(b). The first paragraph of section 1446(b) applies to cases that are removable as initially filed, while the second paragraph applies to cases that although not initially removable, later become removable:

if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b). Under section 1446(b), the thirty-day removal clock begins to run when a defendant receives a pleading, motion, or other paper that reveals “on its face” a basis for federal jurisdiction. In Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997), the Fourth Circuit ruled that courts need not inquire into the subjective knowledge of the defendant but instead should “rely on the face of the initial pleading and on the documents exchanged” by the parties to determine when the defendant had notice of the grounds for removal.

         Defendants argue that while the Bencivengos' initial complaint sought unspecified consequential and punitive damages, it did not establish “to a legal certainty” that the total amount in controversy exceeds $75, 000. Defs.' Mot. 3. A review of the initial complaint demonstrates that the only damages specifically pleaded in the initial complaint were the actual damages of $23, 808, although there was also a request for “consequential and punitive damages.” Compl. ¶ B. Defendants contend that the inclusion of this unspecified claim for punitive and consequential damages was insufficient on its face to give them a basis for removal. The ...


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