United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiffs Jose Roman, Jr. and Stacy
Roman's Motion to Dispute, Oppose and Dismiss
Defendant's Petition for Removal of Action from State
Court (Arizona), (“Motion to Remand, ” Doc. 7),
Motion for Entering a Default Judgment, (“Motion for
Default Judgment, ” Doc. 15), and Motion for Court
Order to Secure Appearance of a Pro Per Prisoner to Attend
Court Ordered Scheduling Conference, (“Motion to
Attend, ” Doc. 14). Defendant Travelers Home and Marine
Insurance Company (“Travelers”) has filed
responses to Plaintiffs' Motion to Remand, (Doc. 13), and
Motion for Default Judgment, (Doc. 16). Plaintiffs have also
filed a Supplement and Affidavit related to their Motion for
Default Judgment, (Doc. 17), and Defendant Travelers has
filed its Response to the Supplement, (Doc. 18). Finally,
Plaintiffs filed a Reply regarding their Motion for Default
Judgment. (Doc. 19). The Court now rules on Plaintiffs'
proceeding pro se, filed the instant Complaint in
the Superior Court of Arizona in and for the County of Navajo
on or around July 6, 2016. (Doc. 1-1 at 2-14). On July 27,
2017, Defendant Travelers removed the case to this Court,
asserting diversity jurisdiction under 28 U.S.C. §§
1332, 1446 (2012). (See Doc. 1).
Complaint appears to allege state law claims for breach of an
insurance contract and insurance bad faith against
Defendants. (Doc. 1-1 at 2-14). Plaintiffs seek damages
against Defendants “[f]or the total principal amount of
$77, 763.03.” (Id. at 13- 14). Defendant
Travelers alleges that Plaintiffs are domiciled in Arizona.
(Doc. 1 at ¶ 11). Defendant Travelers is
“organized and existing under the laws of the State of
Connecticut with its principal place of business in the State
of Connecticut.” (Id. at ¶ 12). Defendant
Alan D. Schnitzer is a resident of New York, and Defendant
Brian W. MacLean is a resident of Connecticut. (Doc. 6 at 1).
Plaintiffs do not dispute Defendants' allegations
regarding residency or domicile.
removal, on August 9, 2017, Defendant Travelers filed a
Motion to Extend Time to Answer the Complaint. (Doc. 8). In
its Motion, Defendant Travelers admitted it had failed to
timely respond to Plaintiffs' Complaint. (See
Id. at 2). On the same day, the Court denied Defendant
Travelers's Motion, and Defendant Travelers filed its
Answer on August 10, 2017. (Doc. 10).
MOTION TO REMAND
move to remand this action to state court, where it was
initially filed. In support of the Motion to Remand,
Plaintiffs argue the following: (1) “Defendant[s]
failed to cite in their petition [Federal Rule of Civil
Procedure (“Federal Rule”)] 81 as the
basis” for removal, (Doc. 7 at 2-3); (2) “The
State of Arizona Court[s] have jurisdiction on this
[C]omplaint, ” (id. at 3-4); (3) Removal to
federal court is a hardship because Plaintiff Jose Roman, Jr.
is currently incarcerated with the Arizona Department of
Corrections, (id. at 7-10, 12-13); and (4)
Plaintiffs have reevaluated their claimed damages and now
only seek $60, 000.00 in damages, (id. at 10-12).
Defendant Travelers asserts that removal was proper. (Doc.
Federal Rule 81
first argue that the Court should grant their Motion to
Remand because Defendant Travelers failed to cite Federal
Rule 81 in its Notice of Removal. (Doc. 7 at 2- 3). Defendant
Travelers argues that Federal Rule 81 does not affect a
defendant's right to remove a case. (Doc. 13 at 1-2). The
Court agrees with Defendant Travelers.
Rule 81 “specifies the action and proceedings to which
the [Federal] Rules do or do not apply or to which they apply
only to a limited extent.” 12 Charles A. Wright, Arthur
R. Miller & Richard L. Marcus, Federal Practice &
Procedure § 3131, at 542 (3d ed. 2014). While
Federal Rule 81(c) covers the procedure used for cases
following removal to federal court, Federal Rule 81
does not provide the basis for removal. See Fed. R.
Civ. P. 81(c).
Defendant Travelers's right to remove the instant case to
this Court was not impeded by its failure to cite Federal
Rule 81. Because Federal Rule 81 details the procedure
involved in a case after it is removed to federal
court, Plaintiffs are incorrect in arguing that Federal Rule
81 provides a basis for removal. Even if the Court
construes Plaintiffs' assertions as an argument that
Defendant Travelers has failed to follow Federal Rule 81
following removal, Plaintiffs have failed to identify any
particular deficiency; furthermore, a failure to follow
Federal Rule 81 does not provide a basis to remand a case to
state court. Thus, Plaintiffs' argument involving Federal
Rule 81 fails.
State Court Jurisdiction
Plaintiffs argue that because Arizona state courts have
jurisdiction over this matter, Defendant Travelers is
prohibited from removing the case to federal court. (Doc. 7
at 3-4). In other words, Plaintiffs ...