Moving Personal Injury Case form State Court to Federal Court

It is well established that removal statutes are to be strictly construed against removal. Shamrock Oil & Gas Corp. vs. Sheets, 313 U.S. 100 (1941); Burns v. Windsor Ins., Co., 31 F.3d 1092, 1094 (11^th Cir.1994)(“[R] removal statutes are construed narrowly; [when the parties dispute jurisdiction], uncertainties are resolved in favor of remand.”). See also, American Fire & Cas. Co. Finn, 341 U.S. 6 (1951). The principle of strict construction of 28 U.S.C. §1441 is particularly applicable in cases involving diversity of citizenship. Gober v. Allstate Ins. Co., 855 F.Supp. 158 (S.D. Miss. 1995); Robinson v. Quality Ins. Co., 633 F.Supp 572 (S.D. Ala. 1096).

The requirement that the minimum amount in controversy for diversity of citizenship jurisdiction be met is narrowly construed so as not to frustrate the congressional purpose of keeping the diversity caseload of federal courts under some modicum of control. Pierson v. Source Perrier, S.A., 848 F.Supp. 1186 (E.D. Penn. 1994)(emphasis added), citing Packard v. Provident National Bank, 944 F.2d 1039 (3^rd Cir. 1993). All doubts concerning jurisdiction should be resolved in favor of remand. Pierson, supra, citing, Abels v. State Farm Fire & Cas. Co., 770 F.2d 26 (3^rd Cir. 1985).

Defendants have a right by statute to remove in certain circumstances. However, Plaintiff is still the master of his own claim. Burns v. Windsor Ins. Co., 31 F.3d 1092 (11^th Cir. 1994). As such, the Defendant’s right to remove and Plaintiff’s right to choose his forum are not equal; removal statutes are construed narrowly and when a dispute arises as to jurisdiction, uncertainties should be resolved in favor of remand, Id. at 1097. In determining whether a claim exceeds the jurisdictional limit, the standard to be used, when measuring the damages sought and amounts in controversy, is an objective one wherein the subjective intent or belief of the parties is not a proper measure. Burns v. Windsor Ins. Co., supra. A removing party has the burden of proving that federal jurisdiction exists by preponderance of the evidence and the removing party must present facts establishing its right to remove. If the removing party fails to meet this burden, the case must be remanded. Williams v. Best Buy Company, Inc., 269 F.3d 1316 (11^th Cir. 2001). See also, Libhart v. Santa Monica Diary Co., 592 F.2d 1062 (9^th Cir. 1979).

In other words, if a Defendant is only speculating that such a personal injury will no doubt be seeking damages in excess of the minimum requirements of $75,000.00, the removal should fail. The Plaintiff, that makes the decision to file their action in the State’s Circuit Court, should not be moved to Federal Court without objective findings that the amount in controversy is in fact, in excess of the minimum requirements.

Many insurance companies attempt to remove State actions to Federal Court because the pool of jury members will be broader and the amount of attorney time billable increases due to the amount of memorandums and writings necessary to move the case along to trial. Plaintiff’s generally are seeking redress from a jury of “their peers”, which when pulled from within the County of the action, is a closer representation of that Plaintiff.

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Peter Shutters

Personal Injury Attorney at Harris Guidi Rosner, P.A.

Peter Shutters has fourteen years as an insurance defense attorney before joining Harris, Guidi & Rosner P.A. where he concentrates on Personal Injury cases.He has jury trial experience in a variety of Florida Counties, including, Duval, Clay, Marion, Orange, Escambia, Santa Rosa and Okaloosa. He has handled a number of appeals, including several oral arguments at the Fifth DCA in Volusia County.