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B Dubs, LLC v. Scottsdale Insurance Co.

United States District Court, M.D. Louisiana

May 27, 2015

B DUBS, LLC, ET AL.,
v.
SCOTTSDALE INSURANCE COMPANY, ET AL

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the court is Plaintiffs Motion to Remand. (R. Doc. 6). Defendants have filed an Opposition (R. Doc. 8) and a supplemental brief (R. Doc. 15). Based on the following, Plaintiff's motion should be granted.

I. Background

This is an insurance dispute. B Dubs, LLC d/b/a Orleans on The Avenue and Bryan Willis ("Plaintiffs") operated a restaurant in Plaquemine, Louisiana. On January 6, 2014, the restaurant caught fire and closed. Plaintiffs carried an insurance policy provided by defendant Scottsdale Insurance Company ("Scottsdale"). Plaintiffs filed a claim with Scottsdale, who contracted with an insurance adjuster, Eric Lewis ("Lewis") and his employer Vericlaim, Inc. ("Vericlaim"). After Lewis's first evaluation of the claim, Scottsdale provided Plaintiffs a check for $97, 286.24 on April 22, 2014. (R. Doc. 1-4 at 2). Plaintiffs demanded a reevaluation, and Lewis conducted one. Based on Lewis's reevaluation, Scottsdale paid an additional $83, 901.54 to Plaintiffs on June 2, 2014. (R. Doc. 1-4 at 2).

On January 6, 2015, Plaintiffs filed this action in the 18th Judicial District Court for Iberville Parish, Louisiana, naming as defendants Scottsdale, Vericlaim, and Lewis ("Defendants"). (R. Doc. 1-4). Plaintiffs assert that the $181, 188.38[1] tendered by Scottsdale is "a figure that remains abusively low and fails to compensate plaintiffs under the terms and conditions of the policy issued by Scottsdale despite repeated and additional demands for an additional tender." (R. Doc. 1-4 at 2). Plaintiffs seek to recover damages under the theory that Defendants breached their affirmative duties to adjust the insurance claims fairly and promptly in violation of Louisiana law. (R. Doc. 1-4 at 3).

On February 6, 2015, Vericlaim removed this action, asserting that the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (R. Doc. 1). In its Notice of Removal, Vericlaim states that at the time of removal neither Scottsdale nor Lewis had been served by Plaintiff. (R. Doc. 1 at 1). Vericlaim alleges it is a citizen of Delaware and Illinois, Scottsdale is a citizen of Ohio and Arizona, Lewis is a citizen of Louisiana, and Plaintiffs are citizens of Louisiana (R. Doc. 1 at 2-3). Vericlaim asserts that the non-diverse defendant Lewis is improperly joined because Plaintiffs have no cause of action against an independent adjuster hired to adjust a claim by an insurance company. (R. Doc. 1 at 4-5).[2] Accordingly, Vericlaim asserts that the court should ignore the citizenship of Lewis for the purpose of establishing complete diversity. (R. Doc. 1 at 5). With regard to the amount in controversy requirement, Vericlaim asserts that it is facially apparent that the amount in controversy exceeds $75, 000.00, exclusive of interest and costs. (R. Doc. 1 at 7-9).

On March 5, 2015, Plaintiffs filed their motion to remand, arguing that there is insufficient evidence to show that the amount in controversy requirement is satisfied, there is not complete diversity, and that removal was procedurally improper because Vericlaim failed to join or gain consent from the other named defendants prior to removal. (R. Doc. 6).

On March 12, 2015, over one month after removal and following the filing of the Motion to Remand, Defendants requested Plaintiffs to enter into a binding stipulation stating that their damages were less than $75, 000.00, but Plaintiffs refused. (R. Doc. 8-1 at 1).

On May 1, 2015, Plaintiffs filed a "Jurisdictional Stipulation" into the record stating that the "total amount of damages that the plaintif[s] can recover in this case against the defendants... does not exceed the value of $75, ...


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