Smith v. Union National Life Insurance Company, 187 F. Supp. 2d

BRIEF IN SUPPORT OF MOTION TO REMAND

Plaintiff, , submits this Brief in Support of its Motion to Remand this case to the

Circuit Court of County, Mississippi, and awarding costs and reasonable attorney's fees to

Plaintiff, and in support hereof shows this Court as follows:

FACTS

The relevant facts are set forth in Plaintiff's Motion to Remand and are incorporated

herein by reference.

ISSUES

The primary issue to be determined by this Court is whether this Court has jurisdiction

over this matter pursuant to 28 U.S.C. § 1332.

ARGUMENT

This Court does not have jurisdiction over this matter pursuant to 28 U.S.C. § 1332, since

as of the time of Defendant's Notice of Removal the amount in controversy does not exceed $

exclusive of interest and costs. On the contrary, Plaintiff's Complaint as filed seeks damages,

both compensatory and punitive, in the amount of $ . The Complaint has not been

amended to seek additional damages.

In his Notice of Removal, Defendant referred this Court to the Complaint and Plaintiff's

responses to Defendant's First Requests for Admission. The Complaint on its face seeks $

in both compensatory and punitive damages; accordingly the Complaint provides no support for

Defendant's Notice of Removal. Defendant also referred this Court to Plaintiff's responses to

Defendant's First Requests for Admission as support for his Notice of Removal, as if something

contained in said responses provided a factual basis upon which Removal is justified.

Referring to Plaintiff's responses to Defendant's First Requests for Admission, it is

important to point out that, to each request, Plaintiff, by and through counsel, objected and gave

a basis for each objection. Plaintiff did not admit to anything contained in the requests. There

are no undisputed facts which are before this Court which provide support for a Removal of this

case.

The status of Plaintiff's responses to Defendant's Requests for Admission is similar to the

situation found in , where the Plaintiff appealed the trial court's refusal to deem

certain matters admitted since the Defendants simply objected to the Plaintiff's requests for

admission. The Fifth Circuit affirmed the trial court as follows:

Id., at 1114,5.

In like manner, Defendant has gotten his/her proverbial cart ahead of his proverbial

horse, asking this Court to treat Plaintiff's objections to Defendant's requests for admission as

conclusively establishing the jurisdictional prerequisites of diversity jurisdiction under 28 U.S.C.

§ 1332. As makes clear, nothing of the sort has been established. Accordingly, there are

no facts before this Court which support the removal of this case.

Defendant's wrongful, attempted removal of this case has forced Plaintiff, through

counsel, to make this response. Plaintiff has, therefore, incurred fees and expenses which he/she

would not have otherwise incurred. Pursuant to 28 U.S.C. § 1447(c), Plaintiff is entitled to

recover the reasonable expenses of his/her efforts to remand this case to state court, including a

reasonable attorney's fee. This Court should award Plaintiff such expenses and attorney's fees,

charged to Defendant, in conjunction with its remand of this case.

Respectfully Submitted,

Of counsel:

Telephone:

MSB #:

CERTIFICATE OF SERVICE

This is to certify that I, , have this day served a true and correct copy of the

foregoing via U.S. Mail, postage pre-paid and properly addressed to:

This the day of ,