ORDER
This mаtter is before the court on issues raised by defendant Travelers Insurance Company’s petition for removal. 28 U.S.C. §§ 1441(a), 1446. Plaintiff’s complaint, brought pursuant to O.C.G.A. § 33-4-6 (bad faith failure to pay insurance proceeds), was filed in September 1987 in the Superiоr Court of DeKalb County. By defendant’s petition filed October 30, 1987, this action was removed to this court. Jurisdiction is premised upon 28 U.S.C. § 1332(a)(1) (diversity of citizenship). Plaintiff challenges the propriety of defendant’s petition on jurisdictional amount grounds. 28 U.S.C. § 1332(a).
Preliminary Concerns
As a рreliminary matter, the court notes that the parties’ handling of this entire dispute has apparently been conducted with little if any regard to applicable rules of procedure. First, no formal motion is before the court for consideration. Indeed, this matter was submitted for ruling on “Plaintiff’s Response to Defendant’s Petition for Removal,” filed November 16, 1987. Because a court order is not a pre
*1408
requisite to the removal of a case from a state court, the propriety of a removal can only be challenged by a party through a motion to remand filed pursuant to 28 U.S.C. § 1447(c).
See Howes v. Childers,
Second, the parties have engaged in a “war of briefs” in complete disregard of the local rules of this district. With plaintiff’s “motion” having been filed November 16, 1987, defendant’s responsive brief was due by the end of November. Local Rule 220 — 1(b)(1) (response shall be filed not later than ten days after the motion). Nevertheless, defendant’s response was filed December 8, 1987. Plaintiff was then entitled to file a reply brief within ten days of defendant’s response. Local Rule 220-1(b)(2) (reply shall be filed not later than ten days after response). This deadline notwithstanding, plaintiff’s reply was filed December 28, 1987. Finally, on January 13, 1988 defendant filed a completely unauthorized brief in response to plаintiff’s reply. Id. (no further supplemental briefs may be filed except by leave of court).
Because plaintiff’s motion to remand has never been designated as such, the court will not penalize defendant for filing an untimely brief — particularly, sincе its timeliness is governed by a local rule captioned, “Filing of Motions and Responses.” Local Rule 220-1. Plaintiff’s December 28, 1987 reply brief, however, is stricken as untimely. Local Rule 220-l(b)(2). Similarly, defendant’s January 13, 1988 reply brief is stricken as having been filed without leаve of court. Id.
Removal Jurisdiction: Amount in Controversy
1.Motions to Remand
A motion to remand may be considered only on the grounds that the case was “removed improvidently and without jurisdiction.” 28 U.S.C. § 1447(c). When considering such a motion, a court should examine closely the grounds asserted for its subject matter jurisdiсtion. “As a eongressionally imposed infringement upon a state’s power to determine controveries in their [sic] courts, removal statutes must be strictly construed.”
Cowart Ironworks, Inc. v. Phillips Construction Co.,
2. Basis for Plaintiffs Motion
As alluded to above, plaintiff bases his challenge to defendant’s removal petition on the jurisdictional amount in controversy. 28 U.S.C. § 1332(a). Specifically, plaintiff points to his prayer for damages wherein he seeks: “(a) damages in the sum of $4,900.76; (b) the cost of storage [of plaintiff’s damaged automobile] at a rate of $5.00 per day; (c) a sum equal to 25 percent of defendant’s liability for said damages; (d) рunitive damages; (e) reasonable attorney fees; and (f) such other relief that the court deems just and proper.” Complaint, ¶ 11. It is argued that those damages capable of reasonably accurate calculation fail tо reach the requisite jurisdictional amount, Brief, ¶ 2. Defendant concedes that the damages sought by plaintiff in (a), (b) and (c) above total no more than $7,938.45, 1 but asserts that “the claim for attorney fees and punitive damages makes the amount in controversy over $10,000.” Response at 2.
3. Punitive Damages
In support of its contention that plaintiff’s claim for unspecified punitive damages may be considered by the court in assessing jurisdictional amount, defendant cites Judge Tidwell’s order in
Swafford v. Transit Casualty Co.,
Plaintiff’s complaint is comprised of but one count and is brought pursuant to O.C.G.A. § 33-4-6. Specifically, plaintiff alleges that defendant’s refusal to pay proceeds due on an automobile insurance policy constitutes bad faith and thus entitles him tо damages as provided in § 33-4-6. Complaint, 1111. Pursuant to § 33-4-6, a plaintiff must establish both his entitlement to the disputed proceeds and the defendant’s bad faith in withholding them. This having been done, the plaintiff is entitled to recover the amount of his loss, a penalty in an аmount not to exceed 25 percent of his loss; and reasonable attorney fees. § 33-4-6. In construing this statute over the years, the Georgia courts have held it to be the exclusive remedy for those claiming bad faith failure to pay proсeeds.
See, e.g., Insurance Company of North America v. Folds,
In considering an appelleе’s claim that he was entitled to an award of punitive damages in addition to the 25 percent penalty, the
Ogden
court concluded that punitive damages other than those specifically prescribed in O.C.G.A. § 33-4-6; i.e., the 25 percent penalty, were not allowable. “The [statutory] remedy is exclusive in the absence of some special relationship of the parties.”
Ogden
at 805,
4. Reasonable Attorney Fees
As a consequence of the foregoing, the court can retain jurisdiction over this action only if it dеtermines that plaintiff’s request for unspecified attorney’s fees suffices to place the amount in controversy over the $10,000 mark. Where, as here, attorney’s fees are allowable by applicable law, they may be included in assessing the jurisdictional amount in controversy.
Vacca v. Meetze,
The court could deny plaintiff’s motion to remand on the strength of the foregoing discussion аlone. The court notes, however, that plaintiff is on record as having denied that his attorney’s fees request is sufficient to meet the jurisdictional amount in controversy. Brief, ¶ 2. Though plaintiff stops short of actually representing to the court that hе would not seek attorney’s fees in this amount, the court will give him an opportunity to do so. Accordingly, plaintiff’s motion to remand is conditionally DENIED as follows. Plaintiff will be allowed twenty days from receipt of this order in which to file with the court an affidavit stating that he agrees to seek attorney’s fees only to the extent that an award of such fees, when coupled with the balance of the amount in controversy, would not exceed $10,000. Should plaintiff file this affidavit, the court will grant his motion and remand this action back to the Superior Court of DeKalb County where plaintiff would then be judicially estopped from recovering an amount in excess of $10,000,
4
see American National Bank v. FDIC,
Conclusion
Plaintiff’s December 28, 1987 brief and defendant’s January 13, 1988 brief are stricken from the record as having been filed in violation of Local Rule 220-l(b)(2). Plaintiff’s response to defendant’s petition for removal is hereby deemed a motion to remand filed pursuant to 28 U.S.C. § 1447(c). As such, plaintiff’s motion is conditionally DENIED. Plaintiff will be allowed twenty (20) days from receipt of this order in which to file an affidavit consistent with the above discussion. In the event such an affidavit is filed within the time provided, the court will vacate its conditional denial and grant plaintiff’s motion to rеmand; otherwise, the conditional denial will become final.
ORDER
This matter is before the court on plaintiff’s response to the court’s order of April 28, 1988 wherein plaintiff’s motion to remand was conditionally denied. In that order, the court stated,
Plaintiff will bе allowed twenty days from receipt of this order in which to file with the court an affidavit stating that he agrees to seek attorney’s fees only to the extent that an award of such fees, when coupled with the balance of the *1411 amount in cоntroversy, would not exceed $10,000. Should plaintiff file this affidavit, the court will grant his motion and remand this action back to the Superior Court of DeKalb County where plaintiff would then be judicially estopped from recovering an amount in excess of $10,-000 (сitations omitted).
Order of April 28, 1988 at 1410. Plaintiff has filed such an affidavit. Accordingly, the court’s April 28, 1988 order conditionally denying plaintiff’s motion to remand is VACATED, plaintiff’s motion is GRANTED, and this action is hereby REMANDED back to the Superior Court of DeKalb County.
Notes
. Defendant arrives at this figurе as follows: (a) $4,900.76 (proceeds due) plus (b) $1,450.00 (storage costs; 290 days at $5 per day); plus (c) $1,587.69 (25% of (a) and (b)).
. The Swafford decision cited above likewise involved O.C.G.A. § 33-4-6. Though that court concluded that the plaintiffs prayer for unspecified punitive damages in additiоn to the 25 percent penalty served to satisfy the amount in controversy requirement, the court notes that it was decided without the benefit of the Georgia Court of Appeals’ Ogden decision.
. James D. McGlynn is employed as an Assistant Manager in the Property Casualty Claims Department for the defendant.
. Exclusive of interest and costs.