Opinion
CASE NO. 8:00-CV-989-T-24TBM
January 22, 2001
ORDER
This cause comes before the Court on Plaintiff's Motion to Remand (Doc. No. 6). Defendant filed a Memorandum in Opposition thereto (Doc. No. 10). Upon review of the motion and supporting memoranda filed by the parties, this Court finds that the Plaintiffs Motion to Remand should be denied.
Facts and Procedural History
Over the past decade, National Life Insurance Company ("Defendant") issued to Steven A. Field ("Plaintiff') seven disability income insurance policies (the "policies"). In January 1995, Plaintiff submitted a claim for benefits under the policies. For approximately three and one-half years, Defendant paid policy benefits to Plaintiff. On or about August 1, 1999, Defendant terminated payment of policy benefits to Plaintiff.
Plaintiff thereafter commenced an action against Defendant in state court on or about August 23, 1999. In his complaint, Plaintiff seeks to recover benefits under the policies issued by Defendant. Count 1 of Plaintiffs complaint states that "this is an action for damages that exceed $15,000.00, exclusive of interest, costs, and attorneys' fees."See Plaintiffs Complaint, ¶ 1. Plaintiff further alleges that "Defendant breached each of the disability insurance policies by refusing to pay [Plaintiffs] August 1999 disability benefits or any subsequent monthly disability benefits owed pursuant to the terms of the seven policies issued by Defendant." See Plaintiffs Complaint, ¶ 14. For relief, Plaintiff demands judgment for, among other things, damages against the Defendant "in the amount of $14,400.00 for the month of August 1999, and $14,400.00 per month for each month thereafter during which [Defendant] fails or refuses to pay monthly disability benefits to Plaintiff." See Plaintiffs Complaint, ¶ 17, wherefore clause. Count 2 of Plaintiffs complaint is an action for declaratory judgment pursuant to Florida Statutes, Chapter 86. See Plaintiff's Complaint, ¶ 18. Plaintiff "demands judgment declaring that Plaintiff remains totally disabled under the terms of the disability insurance policies issued by [Defendant], declaring that Defendant is obligated to continue paying disability insurance benefits to Plaintiff, and awarding Plaintiff his costs and reasonable attorneys' fees incurred in this action." See Plaintiffs Complaint, ¶ 21, wherefore clause.
On or about May 19, 2000, Defendant filed a Notice of Removal of this action pursuant to 28 U.S.C. § 1441, 1446 1332. Plaintiff now moves this Court to remand the action back to state court alleging that Defendant's removal was untimely.
Discussion
Under 28 U.S.C. § 1441(b), a defendant may only remove an action from state court to federal court if the federal court would possess original jurisdiction over the subject matter. In the case at bar, the source of original jurisdiction is 28 U.S.C. § 1332, which grants federal district courts jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . .citizens of different states." The parties do not dispute that they are citizens of different states. Plaintiff is a resident of Tampa, Hillsborough County, Florida. Defendant is a Vermont corporation with its principal place of business in Montpelier, Vermont.
In dispute, however, is when the $75,000.00 amount in controversy requirement was ascertainable. The resolution of that matter determines whether Defendant's Notice of Removal was timely. Title 28 U.S.C. § 1446(b) provides, in pertiment part:
The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
(Emphasis added).
Defendant filed its Notice of Removal on May 19, 2000, on the theory that the suit at the time filed did not involve the minimum jurisdictional amount required by § 1332 and did not involve the requisite amount until Defendant received Plaintiffs answers to Defendant's interrogatories. According to Defendant, it was not until it received Plaintiffs answers to Defendant's interrogatories that it could "first ascertain" that the amount in controversy requirement had been met. Thus, Defendant argues that it timely removed when it filed its Notice of Removal within 30 days of receipt of Plaintiffs answers to Defendant's interrogatories. In contrast, Plaintiff argues that the amount in controversy exceeded $75,000.00 at the time this complaint was filed, and Defendant should have removed the action within 30 days after Defendant received the summons and complaint. Plaintiff further contends that because Defendant failed to timely remove, this action should be remanded to state court.
On February 29, 2000, Defendant served its first set of interrogatories on Plaintiff. Plaintiff served his interrogatory answers on April 21, 2000, approximately eight months after the summons and complaint were served on Defendant.
Plaintiff argues three separate grounds for the conclusion that the amount in controversy was ascertainable at the time the complaint was filed. Initially, Plaintiff cites to various cases for the proposition that the amount in controversy at the time the complaint was filed includes damages that accrued before suit was filed and damages that would accrue after suit was filed and before judgment. Secondly, Plaintiff contends that the amount in controversy exceeded $75,000.00 at the time the action was filed because he alleges a cause of action for declaratory judgment regarding Defendant's alleged "repudiation" of the policies. Lastly, Plaintiff asserts that the accrued insurance benefits plus the amount of the attorney fees exceeded the amount in controversy requirement at the time Defendant received the summons and complaint. The Court will address each argument in turn.
I. Accrual of Policy Benefits
Plaintiffs first contention is without merit because Plaintiff ignores the nature of the cause of action in dispute. When an insurer refuses to pay periodic insurance disability benefits upon the ground that the insured is not totally disabled, Florida law provides that "[t]he right of action based upon an insurer's failure to pay periodic indemnity or benefits is limited to the installments which have accrued at the institution of the action." Aetna Life Ins. Co. v. Smith, 345 So.2d 784, 787 (Fla. 4th DCA), cert. denied, 353 So.2d 678 (Fla. 1977); see also Cruz v. Union Gen. Ins., 586 So.2d 91 (Fla. 3d DCA 1991); Mutual Life Ins. Co. v. Knight, 178 So. 898 (Fla. 1938); Amritt v. Pennsylvania Life Ins. Co., 105 F. Supp.2d 1322 (S.D. Fla. 2000); Mobley v. New York Life Ins. Co., 55 S.Ct. 876 (1935); New York Life Ins. Co. v. Viglas, 56 S.Ct. 615, 616 (1936). This is true even if the insurer is mistaken as to the insured's disability. See Smith, 345 So.2d at 787. Thus, since the complaint was filed shortly after the Defendant terminated payments under the policies, the total amount of benefits that had accrued at the institution of the action was $14,400.00, significantly less than the $75,000.00 amount in controversy requirement. See also Keck v. Fidelity Cas. Co., 359 F.2d 840 (7th Cir. 1966).
This Court is unpersuaded by Plaintiffs argument that the insurer has "repudiated" the entire contract, thus fitting this case within the exception to the above stated rule. "A recognized exception may be applicable where there is a repudiation of the entire contract by the insurer . . . ." Smith, 345 So.2d at 787. In order for a plaintiff to be entitled to treat the contract as absolutely and finally broken and to recover damages as upon total breach, the repudiation by the defendant "[m]ust at least amount to an unqualified refusal, or declaration of inability, substantially to perform according to the terms of his obligation." Mobley, 55 S.Ct. at 878. The defendant must "[d]isclaim the intention or the duty to shape its conduct in accordance with the provisions of the contract." Viglas, 56 S.Ct. at 616. In the case at hand, Defendant did not take such action with respect to the policies.
Defendant merely discontinued payments to Plaintiff based on the belief that Plaintiff was not totally disabled. An insurer's refusal to pay benefits on the grounds that the insured is not totally disabled under the policy is not a repudiation. See Mobley, 55 S.Ct. at 878; see also Smith, 345 So.2d at 787. Moreover, the "mere refusal, upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause, to pay a monthly benefit when due is sufficient to constitute a breach of that provision, but does not amount to a renunciation or repudiation of the policies." Mobley, 55 S.Ct. at 878;see also Smith, 345 So.2d at 787; Amritt, 105 F. Supp.2d. at 1324.
Defendant's position with respect to the policies at issue is sufficiently analogous to the insurers in Amritt and Viglas who were found not to have repudiated their respective policy contracts. InAmritt, the insurer discontinued disability payments to the insured on the belief that insured was not disabled, continued to accept premium payments and declared that it would pay benefits if the insured ever became disabled. Amritt, 105 F. Supp.2d at 1324. Furthermore, the insured in Amritt failed to make allegations as to insurer's bad faith in declining to make the benefit payments. Id. at 1325. In the insured's Amended Complaint, there was no contention that a renunciation or abandonment of the contract had occurred. Id. at 1325. Similarly, inViglas, the insurer followed the policy, by ceasing payment on the belief that the insured was not disabled. Viglas, 56 S.Ct. at 616. Indeed, "[f]ar from repudiating [the] provisions [of the policy], it appealed to their authority and endeavor to apply them." Id. On a showing of disability, the insurer would then pay the benefits due. Id.
Defendant in the case at hand has acted in the same manner. Defendant has not renounced or abandoned the policies. On the contrary, Defendant has maintained that the policies remain in full force and effect so long as the premiums are properly paid and that Defendant will pay the benefits to Plaintiff if he qualifies under the terms of the policies.See Defendant's Memorandum in Opposition to Plaintiffs Motion to Remand, III., A., 2. Following the policy, Defendant alleges that it believed Plaintiff was no longer disabled and stopped payment of the benefits.
Plaintiffs complaint also fails to allege a claim for repudiation, if one was even intended. Plaintiffs complaint states that "Defendantbreached each of the disability insurance policies by refusing to pay [Plaintiffs] August 1999 disability benefits or any subsequent monthly disability benefits owed pursuant to the terms of the seven policies issued by Defendant." See Plaintiff's Complaint, ¶ 14 (emphasis added). Therefore, Plaintiffs claim was more closely framed as a breach of contract action and thus supports the conclusion that there was no repudiation of the policies in this case. Such a conclusion does not mean that Plaintiff may not later recover if it is ultimately determined that Defendant was mistaken or wrong as to the termination of Plaintiffs benefits. Defendant will be liable for any damages that flow from that breach of the provision of the policies. However, it does establish that the amount in controversy was not met at the time the complaint was filed. Where there is no repudiation of the policies, Plaintiffs right of action based on upon Defendant's failure to pay insurance benefits is limited to the installments that have accrued at the institution of the action. Because Plaintiffs complaint was filed less than one month after the date that Defendant terminated payment of benefits, the total amount of installments that had accrued at that point was only one month's worth of benefits payments, $14,400.00.
II. Declaratory Judgment
Plaintiff also contends that the amount in controversy includes damages that accrued before the suit was filed and damages that would accrue after suit was filed because Plaintiff seeks a declaratory judgment under Florida Statutes, § 86.011, regarding Defendant's alleged repudiation of the policies. The cases cited by Plaintiff are inapplicable to the case at hand due to this Court's discussion above regarding repudiation.
Moreover, Florida law provides that a declaratory judgment is not available to determine whether an insured is entitled to benefits under insurance policies, the terms of which are not in dispute. See. e.g., Hartford Life Ins. Co. v. Albert, 191 So.2d 579 (Fla. 3d DCA 1966);Travelers Ins. Co. v. Emery, 579 So.2d 798 (Fla. 1St DCA 1991); Columbia Cas. Co. v. Zimmerman, 62 So.2d 338 (Fla. 1952). In the case at hand, the terms of the insurance policies are clear and unambiguous and as a consequence, not in dispute.
Athough Count 2 of Plaintiffs complaint seeks declaratory relief under Florida Statutes, § 86.011, an insured's action against the insurer under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, would merit the same conclusion in this case. In Keck v. Fidelity Casualty Co., 359 F.2d 840 (7th Cir. 1966), the court held that "[f]uture benefits payable under a contract of insurance may be used to compute sum in controversy for federal diversity jurisdiction purposes only when the validity of the insurance policy itself, and not merely the presence or absence of conditions measuring the insurer's liability thereunder, is a matter in dispute." id. at 841. Thus, where allegations of a complaint for declaratory judgment on a disability policy showed that the validity of the insurance policy was not in dispute but only the insurer's claim that conditions upon which insured's right to receive total disability benefits had not been satisfied (i.e., there was no repudiation of the policies), any alleged future benefits payable under the policy could not be used to compute sum in controversy for federal diversity jurisdiction purposes. Id. at 842. Cf. Intercon Research Assoc., Ltd., v. Topcon Corp., 1995 WL 535104 (N.D.Ill. Sept. 1, 1995) (court noting the significance of finding a repudiation of the policies).
Indeed, as in Albert, the only doubt in this case is doubt as to the ultimate determination of the fact of whether Plaintiff was or was not permanently and totally disabled, subsequent to Defendants s issuance of an insurance policy. Clearly, declaratory relief is not available to determine a disputed question of fact. See. e.g., Smith v. Milwaukee Ins. Co., 197 So.2d 548 (Fla. 4th DCA 1967); M E Land Co. v. Siegel, 177 So.2d 769 (Fla. 1St DCA 1965); Food Fair Stores. Inc. v. Vanguard Inv. Co. Ltd., 298 So.2d 515 (Fla. 3d DCA), cert. denied, 305 So.2d 209 (Fla. 1974). Lastly, declaratory relief under Florida Statutes § 86.011 is limited to a "present, ascertained or ascertainable state of facts or present controversy as to a state of facts . . .," Santa Rosa County v. Administration Comm'n, 661 So.2d 1190, 1192 (Fla. 1995). Plaintiffs future disability is not a presently ascertainable set of facts as Plaintiff could recover from his alleged disability or pass away before he reaches age 65, the end date of the policies.
III. Inclusion of Attorney Fees
Plaintiffs last argument is that the amount in controversy exceeded $75,000.00 upon the filing of Plaintiffs complaint because the amount in controversy includes Plaintiffs claim for a reasonable attorneys' fee. The amount in controversy requirement under 28 U.S.C. § 1332 includes a reasonable attorneys' fees claimed by Plaintiff if the fee is permitted by statute. See Howard v. Globe Life Ins. Co., 973 F. Supp. 1412, 1419 (N.D. Fla. 1996); see also Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933); Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1991); Linkemar v. Health Care Ret. Corp. of Am., 1999 WL 984428, *2 (S.D. Fla. Aug. 10, 1999); Denbo Iron Metal Co. v. Transportation Ins. Co., 792 F. Supp. 1234, 1235 (N.D. Ala. 1992); Hall v. Travelers Ins. Co., 691 F. Supp. 1406, 1409 (N.D. Ga. 1988).
Plaintiff claims a reasonable attorneys' fee under Florida Statutes, § 627.428. In Howard, attorney fees sought pursuant to § 627.428 were properly included in the amount in controversy requirement of 28 U.S.C. § 1332. See Howard, 937 F. Supp. at 1421. Therefore, the amount in controversy in the case includes a reasonable attorneys' fee.
Plaintiff contends that the amount of accrued damages plus attorney fees upon the filing of Plaintiffs complaint "easily" exceeded the $75,000.00 amount in controversy requirement. Plaintiffs calculation is, however, incorrect. As discussed above, Plaintiffs right of action based upon Defendant's failure to pay the benefits is limited to the installments that have accrued at the institution of the action. Only $14,400.00 in benefits had accrued at time the suit was filed by Plaintiff. Secondly, in Hall, accepting that "plaintiffs attorney fees are known to run in the range of 25 and 40 percent of judgment amounts," the court found that attorney's fees on damages of $7,938.45 would be sufficient to place the total amount in controversy over the $10,000.00 amount in controversy requirement then in existence Hall 691 F. Supp. at 1410; see also Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933) ($3,000.00 damages claim plus $250.00 in attorney's fees exceeded jurisdictional requirement); Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1991) ($49,500.00 damages claim plus attorney's fees would exceed then $50,000.00 jurisdictional requirement). Accordingly, claimed attorney's fees must obviously be a reasonable and proportional amount.
Bearing the above facts and law in mind, Plaintiff would like this Court to conclude that the $75,000.00 amount in controversy requirement was met by adding Plaintiffs claimed attorney fees to a mere $14,400.00 in accrued benefits. Though this Court is mindful that "[t]he most significant private expense of litigation, of course, is attorney's fees"see Denbo Iron Metal Co., 792 F. Supp. at 1236, Plaintiff would have to be claiming an attorney's fee of $60,600.00 to argue that the amount in controversy requirement was met upon the filing of Plaintiff's complaint. In other words, attorney's fees would have to be over four times the amount in controversy at the time Plaintiff's complaint was filed in order for attorney's fees to allow Plaintiff to demonstrate the jurisdictional requirement was met upon the filing of Plaintiffs complaint. Even assuming, arguendo, that two months of Plaintiff's total monthly disability payments had accrued at the time of the institution of Plaintiff's action, only $28,800.00 in damages would have accrued requiring an addition of $46,200.00 in attorney fees to push the amount in controversy in excess of the $75,000.00 jurisdictional requirement. Under either set of circumstances, Plaintiffs disproportionately large amount of attorney's fees cannot be employed to claim that the amount in controversy requirement was attained. Therefore, this Court concludes that the jurisdictional requirement was not met at the time Plaintiff's complaint was filed.
IV. Plaintiffs Answers to Defendant's Interrogatories
It is now necessary for this Court to consider whether Defendant properly waited until receipt of Plaintiffs answers to Defendant's interrogatories to file its notice of removal. According to Defendant, it was not until such time that it could first ascertain that this case was removable.
Title 28 U.S.C. § 1446(b) provides that "a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has became removable . . . ." (Emphasis added). Defendant contends that Plaintiffs interrogatory answers constitute the "other papers" from which Defendant could first ascertain that this case was removable. In Defendant's first set of interrogatories propounded on Plaintiff on February 29, 2000, Plaintiff was asked to: Provide a calculation of the damages which you seek in this action, and identify the basis for your computation. In response, Plaintiff stated as follows:
I claim unpaid monthly disability insurance benefits of approximately $14,4000 per month from August 1999 until the date of trial, plus accrued interest and cost of living adjustments pursuant to the terms of the policies. I also claim continued disability benefits for the duration of my psychiatric disability. In addition, I am entitled to reinstatement of the disability policies and waiver of premium from August 1999 to present, and to recovery of attorney's fees.
Thus, at the time of his response, Plaintiff claimed entitlement to at least ten months of accrued benefits under the policies. Since monthly disability benefits are $14,400.00 per month, Defendant was able to ascertain from Plaintiffs response that Plaintiff was seeking accrued benefits in the amount of at least $144,000.00. Based on Plaintiffs claim of entitlement to accrued benefits under the policies obviously pushing the amount in controversy well over the $75,000.00 jurisdictional requirement, Defendant filed its notice of removal within 30 days of its receipt of Plaintiffs response.
This Court finds that Defendant's removal was timely under 28 U.S.C. § 1446 (b). It is clear that interrogatory answers can constitute "other papers." See. e.g., Fleming v. Colonial Stores, 279 F. Supp. 933, 934 (N.D. Fla. 1968); Viens v. Wal-Mart Stores. Inc., 1997 WL 114763 (D. Conn. Mar. 4, 1997); Wood v. Malin Trucking. Inc., 937 F. Supp. 614 (E.D.Ky. 1995); Van v. Arcadian Motor carriers, 825 F. Supp. 981 (D.Kan. 1993); Miller v. Stauffer Chem. Co., 527 F. Supp. 775, 778 (D. Kan. 1981); Bonnel v. Seaboard Airline R.R., 202 F. Supp. 53 (N.D. Fla. 1962).
In Fleming, the court held that "[a]s long as plaintiffs claim is indeterminate from the complaint, or otherwise, the defendant may not be charged with running of time for removal." Fleming, 279 F. Supp. at 934. Thus, where the plaintiffs complaint alleged the jurisdictional amount for state court but was not specific in showing the existence of a claim in an amount necessary for federal jurisdiction, the 30 day period within which the defendant could remove the case to federal court did not start to run until the plaintiff asserted a claim in excess of the jurisdictional amount in its answers to interrogatories. Id. Accordingly, the defendant's petition for removal within 30 days after its interrogatories were answered was held "timely." Id.
Similarly, in Viens, where plaintiffs complaint did not contain a specific monetary demand or detail the extent of her medical expenses and lost wages, the court found that the complaint "[d]id not provide sufficient information for [defendant] to determine whether the jurisdictional amount was satisfied." Viens, 1997 WL 114763, at *2. Thus, Defendant's removal action satisfied § 1446(b) because it was filed seventeen days after receipt of plaintiffs responses to defendant's interrogatories. id. Lastly, in McLain v. American International Recovery, 1 F. Supp.2d 628 (S.D. Miss. 1998), the court held that "until a defendant receives in wrung, a statement that suggests that a plaintiff plans to seek more than $75,000 in damages, the case is not removable to federal court." Id. at 630 (emphasis added). The court outlined the "preferred approach" for a defendant seeking removal:
When a plaintiff has pleaded damages below $75,000 and defense counsel believes that the damages are in excess of $75,000, the defendant can have the case properly removed by utilizing state court discovery procedures. Specifically, the defense lawyer can have the plaintiff admit through a deposition, an interrogatory, or a request for admission that his damages do not exceed $75,000. If the plaintiff denies this request, the case can be removed and this discovery response should be filed in the record. This discovery response will constitute "other paper" that affirmatively shows that the jurisdictional amount may be satisfied.
Id. at 631 (emphasis added).
Analogously, in the case at hand, the Defendant did not have sufficient information to determine that the $75,000.00 jurisdictional requirement was attained until its receipt of Plaintiffs answers to Defendant's interrogatories. Indeed, Plaintiffs complaint merely alleged that "this is an action for damages that exceed $15,000.00, exclusive of interest, costs, and attorneys' fees." Moreover, Defendant could not, as a matter of law, have properly removed this case. at the institution of this action, even if it desired to do so. Since the amount in controversy is limited to benefits which have accrued at the institution of the action (i.e., $14,400.00) where, as here, Plaintiffs right of action is based upon an insurer's failure to pay insurance benefits, any attempt by Defendant to remove would have been subject to a remand by this Court.
The mere fact that Plaintiffs complaint demanded judgment "in the amount of $14,400.00 for the month of August 1999, and $14,400.00 per month for each month thereafter during which [Defendant] fails or refuses to pay monthly disability benefits to Plaintiff' is not sufficient written notice of a specific monetary demand as those damages are future payments that had not yet accrued. Nevertheless, although the aggregate value of benefits allegedly wrongly withheld in the instant case was less than the jurisdictional minimum at the time the case was filed, the aggregate value of past benefits allegedly wrongly withheld subsequently has increased to exceed the jurisdictional minimum. In the instant case, Plaintiff's claim for past benefits now clearly exceeds the jurisdictional minimum, so that removal is appropriate if permitted by § 1446(b).
This is true in light of the possibility that Defendant may have had actual knowledge that the jurisdictional amount was met at some time prior to its notice of removal. For example, as previously discussed, the amount of claimed attorneys' fees combined with amount of damages did not meet the jurisdictional requisite at the institution of this action. However, it could validly be argued by Plaintiff that the jurisdictional amount was met approximately five months prior to Defendant's receipt of Plaintiffs interrogatory answers, which were not received until approximately eight months after the institution of this action. Under § 1446(b), such knowledge does not govern. A "paper" indicating that the case is removable is what is dispositive. As stated in Jong v. General Motors Corp., 359 F. Supp. 223 (N.D. Cal. 1973), "the time period to remove an action cannot depend on defendant's actual knowledge, because the statute expressly allows a defendant to rely on papers presented to it." Id. at 226 (emphasis added). "Thus, the defendant does not have to speculate as to facts forming the basis for removal. Since defendant did not have receipt of any paper until July 5, 1972, and filed the petition for removal on August 3, 1972, the removal was timely within the meaning of Section 1446(b)." Id.
Likewise, in Rogers v. Northwestern Mutual Life Insurance Co., 952 F. Supp. 325, 329 (W.D. Vir. 1997), the court held that a case "does not 'first' become removable until two requirements are fulfilled-actual satisfaction of the jurisdictional minimum and written notice that the amount in controversy justifies the exercise of federal jurisdiction." (Emphasis added). According to the court, "even though defendant may have been able to calculate with some uncertainty the accrued damages to conclude that the jurisdictional minimum had been exceeded, the case was not 'first' removable until defendant had written notice that plaintiff sought damages in excess of [$75,000]." Id. at 329 (emphasis added). The court further explained:
While it can be argued that both plaintiff and defendant could have "first . . . ascertained" from the complaint itself that the jurisdictional amount would have been reached through the running of the monthly payments required under the contract, the "aggregate amount" at issue would only reach the jurisdictional level through the passage of time. No one could know that some exigent circumstance, e.g., the death of a beneficiary, or some other reason, would not prevent the amount from accruing to reach the jurisdictional level. Though knowing how the monthly sum might accrue, neither party could with the requisite certainty "first ascertain" the jurisdictional amount had accrued until that time had passed such that sufficient damages had, in fact, accrued.Id. at 328. Thus, despite the fact that the aggregation of past benefits allegedly wrongly withheld may have accrued past the jurisdictional requisite at some point prior to Defendant's removal, Defendant's removal was proper and timely. Plaintiffs answers to Defendant's interrogatories qualify as an "other paper" so as to trigger the removal provisions of § 1446(b). At the time it received the responses, Defendant's claim then exceeded the minimum required for a federal court to exercise jurisdiction. Because Defendant filed its notice for removal within thirty days of receiving Plaintiffs answers, Defendant's removal of its case was timely and complied with the mandates of § 1446(b). Removal to federal court is thus proper, and Plaintiffs motion for remand must be denied.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs Motion to Remand (Doc. No. 6) is DENIED.