United States District Court, D. Delaware
S. Spadaro, JOHN SHEEHAN SPADARO, LLC, Smyrna, Delaware
Counsel for Plaintiff
Michael R. Abbott, CIPRIANI & WERNER, P.C., Wilmington,
Delaware Counsel for Defendant
CONNOLLY, UNITED STATES DISTRICT JUDGE.
before me are two related motions. The first is Plaintiff
Josue Polanco's motion to remand this case to the
Superior Court of the State of Delaware from which it was
removed to this Court by Defendant Amguard Insurance Company.
D.I. 3. The second is Amguard's Motion for Leave to
Perform Discovery in Order to Respond to Plaintiffs Motion to
Remand. D.I. 6. For the reasons discussed below, I will
reserve decision on Polanco's remand motion and grant
Amguard's discovery motion.
initiated this tort action against Amguard with the filing of
his complaint in the Superior Court of Delaware on January
29, 2018. D.I. 1-1 at 1. Polanco sought in his complaint (1)
a declaratory judgment that Amguard had failed to make
reasonably timely payment of workers' compensation
benefits owed to Polanco for the injuries and disability he
suffered as a result of a work-related truck accident in
August 2015; (2) compensatory and punitive damages for
Amguard's "bad faith" breach of its
workers' compensation insurance contract with
Polanco's employer; and (3) compensatory and punitive
damages for intentional infliction of emotional distress.
Id. at 1, 13-15. Consistent with Delaware Superior
Court Civil Rule 9(g), Polanco did not demand or identify in
his complaint a specific amount of damages.
February 28, 2018, Amguard filed a notice of removal in this
Court pursuant to 28 U.S.C. § 1446. Amguard alleged in
its notice that because of the diversity of Polanco's and
Amguard's citizenships and "because [Polanco] is
believed to be seeking compensatory damages in excess of $75,
000, this Court has original jurisdiction over all of
[Polanco's] state law claims." D.I. 1 at 2.
March 21, 2018, Polanco filed his motion to remand (D.I. 3)
and a memorandum in support of his motion (D.I. 4). On April
4, 2018, Amguard filed its response to Polanco's motion
(D.I. 5) and its own motion for leave "to perform
discovery in order to respond to" Polanco's motion
asserted in its response that it had paid Polanco
approximately $77, 933.88 in indemnity payments related to
his workers' compensation claim. D.I. 5 at 3. It cited in
support of this assertion, and attached as an exhibit to its
response, what appears to be an internal spreadsheet
maintained by Amguard for Polanco's workers'
compensation claim. Amguard also attached to its response (1)
a stipulation filed by Polanco and his employer with
Delaware's Industrial Accident Board ("IAB"),
the quasi-judicial body before which Polanco's
workers' compensation claim was adjudicated; and (2) the
IAB's decision on Polanco's Petition to Determine
Compensation Due. Amguard cited these two documents as
support for its assertions that Polanco had incurred medical
expenses of $16, 043.44 and "indemnity expenses" of
$25, 446.31 as of October 2016 and had been awarded $12,
669.72 in attorney fees by the IAB. D.I. 5 at 3. Amguard
argued in its response that Polanco's "main goal
seems to be to obtain punitive damages for the alleged bad
faith breach of contract and punitive damages for the alleged
reckless infliction of emotional distress." D.I. 5 at
3-4. Amguard stated further that it "belie[ved] that
[Polanco] is evaluating his case using these numbers"
(i.e., the identified sums for indemnity payments, medical
expenses, and attorney fees) and that these numbers
"take [Polanco* s] evaluation above the threshold"
of the $75, 000 amount-in-controversy requirement of 28
U.S.C. § 1332(a). Id. Finally, Amguard argued
that "[i]n the alternative" (D.I. 5 at 4), the
Court should grant its separate motion for leave to conduct
discovery "for the limited purpose of addressing the
amount in controversy" (D.I. 6 at 3).
filed a reply memorandum in support of his remand motion and
in opposition to Amguard's discovery motion on April 10,
2018. D.I. 7. He also filed in June and July 2018 two letters
in further support of his position. D.I. 8; D.I. 9. Polanco
has offered no evidence with respect to the amount in
controversy to counter the evidence offered by Amguard in its
case was reassigned to me on September 24, 2018. I have
studied the parties' filings and do not believe that oral
argument is necessary or would be helpful for me to decide
the pending motions.
defendant seeking to remove a case to federal court must file
in the federal forum a notice of removal 'containing a
short and plain statement of the grounds for
removal'" pursuant to 28 U.S.C. § 1446(a).
Dart Cherokee Basin Operating Co. v. Owens, 135
S.Ct. 547, 553 (2014) (quoting 28 U.S.C. § 1446(a)). The
notice of removal "shall be filed within 30 days"
of the defendant's receipt "through service or
otherwise, of a copy" of the plaintiffs state-court
complaint. § 1446(b).
removal is based on diversity of citizenship, an
amount-in-controversy requirement must be met."
Dart, 135 S.Ct. at 553. Section 1332(a) of Title 28
requires that the amount in controversy exceed $75, 000.
"When the plaintiffs complaint [filed in state court]
does not state the amount in controversy, the defendant's
notice of removal may do so." Id; see also
§ 1446(c)(2)(A)(ii) ("[T]he notice of removal may
assert the amount in controversy ... if the initial ...