Fill and Sign the Smith V Union Nat Life Ins Co 187 F Supp 2d Justia Law Form

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MISSISSIPPI DIVISION PLAINTIFF vs. CIVIL ACTION NO. DEFENDANT 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 incorporate d 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 exce ed $    exclusive of interest and costs. On the contrary, Plaintiff's Complaint as filed seeks dam ages, 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 Plaint iff'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 a nd 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 re fusal to deem certain matters admitted since the Defendants simply objected to the Plai ntiff's requests for admission. The Fifth Circuit affirmed the trial court as follows: [Plaintiff] contends that the District Court erred in failing to consider certain Requests for Admissions as "conclusively established...." [Plaintiff] filed a request for admissions, to which [the Defendants] objected three days later as "attempting to solicit conclusions of fact and conclusions of law." ... While [Plaintiff] filed these requested admissions as facts deemed admitted one day prior to the hearing on the motions for summary judgment, no motion was filed to require more specific answers to these requests or to challenge the sufficiency of these objections. Since the Defendants served objections to the requested admissions, the next move was up to [Plaintiff]. [citations omitted]. Given [Plaintiff's] failure to seek further action by the court to determine the sufficiency of the objections, as thus framed, there was actually no admission and the District Court was under no obligation to consider the requested admissions as facts deemed admitted. 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, inc luding 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, BY: ______________________________________ ATTORNEY FOR PLAINTIFF 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 , . ________________________________