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Polanco v. Amguard Insurance Co.

United States District Court, D. Delaware

December 6, 2018


          John S. Spadaro, JOHN SHEEHAN SPADARO, LLC, Smyrna, Delaware Counsel for Plaintiff

          Michael R. Abbott, CIPRIANI & WERNER, P.C., Wilmington, Delaware Counsel for Defendant



         Pending 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.

         I. BACKGROUND

         Polanco 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.

         On 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.

         On 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 (D.I. 6).

         Amguard 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).

         Polanco 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 response.

         The 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.


         "[A] 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).

         "When 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 ยง 1446(c)(2)(A)(ii) ("[T]he notice of removal may assert the amount in controversy ... if the initial ...

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