United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE
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.
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”). 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.
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.
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
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).
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.
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
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 ...