The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on plaintiff's Motion to Remand [Doc. 25], in which plaintiff seeks an order remanding this case to Knox County Chancery Court. In support of her motion, plaintiff argues that the amount in controversy requirement of 28 U.S.C. § 1332(a)(1) has not been met in this case. [Doc. 26.] Defendant has filed a response opposing the motion [Doc. 36] and plaintiff has filed a reply brief [Doc. 37.] Additionally, plaintiff and defendant have each filed sur-replies [Docs. 40, 41].
The Court has carefully considered the parties' briefs [Docs. 26, 36, 37, 40, 41] and the related pleadings in light of the relevant law. For the reasons set forth herein, plaintiff's motion [Doc. 25] will be DENIED.
Plaintiff, Terry Hahn, filed this class action lawsuit on July 14, 2004, in Knox County Chancery Court against defendant, Auto-Owners Insurance Group, bringing a variety of claims arising from defendant's alleged failure to compensate plaintiff and members of the class for water damage to their homes resulting from improperly installed and/or defective synthetic stucco exteriors ("EIFS"). [Doc. 26 at 1-2]. Plaintiff has asserted claims against defendant for breach of express contract, breach of the covenant of good faith and fair dealing, violation of the Tennessee Consumer Protection Act, breach of the fiduciary relationship between defendant and plaintiff and other class members, and declaratory and injunctive relief. [Doc. 1, Ex. 1 at 2-3.] In her complaint, plaintiff seeks the following damages:
* Compensatory damages for breach of "expressed [sic] agreements" between defendant and plaintiff and other class members adequately accounting for "all past and future claims for covered losses applicable to this Class of Plaintiffs;"
* "[A]ctual damages in an amount to be proven at trial as a result of the wrongful conducted [sic] alleged" resulting from defendant's violation of the Tennessee Consumer Protection Act;
* "[T]reble damages, where appropriate, for all losses and injuries suffered as a result of Defendant's illegal actions, with the amount of damages...to be determined at trial;"
* Compensatory and/or punitive damages for defendant's breach of "fiduciary duties to the Plaintiff and Class members;" and
* Costs and reasonable attorney's fees awarded to plaintiff. [Doc. 1, Ex. 1 at 16-17.]
On August 20, 2004, defendant timely filed a notice of removal with this Court, relying on 28 U.S.C. §§ 1332, 1441, and 1446 and citing diversity of citizenship. [Doc. 1.] On November 9, 2005, plaintiff filed a motion to remand the case to state court. [Doc. 25.] Plaintiff argues that the amount in controversy does not exceed $75,000 as required by 28 U.S.C. § 1332, thereby depriving this Court of original subject matter jurisdiction. [Doc. 26.]
A federal district court has original diversity jurisdiction if an action involves citizens of different states and the amount in controversy exceeds $75,000 exclusive of costs and interest. 28 U.S.C. § 1332(a)(1). In calculating the amount in controversy, compensatory and punitive damages claimed by a plaintiff are included, Wood v. Stark Tri-County Bldg. Trades Council, 473 F.2d 272, 274 (6th Cir. 1973), as are any statutory penalties and statutory attorney's fees sought by the plaintiff. Clark v. National Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). The Sixth Circuit places "the burden on a defendant seeking to remove an action to federal court to show by a preponderance of the evidence that the amount in controversy requirement has been met." Hayes v. Equitable Energy Resources, Co., 266 F.3d 560, 572 (6th Cir. 2001) (citing Gafford v. General Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993). Where, as here, a plaintiff does not assert an exact amount of damages, but instead ...