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Hoffman v. Oyeket

United States District Court, E.D. Louisiana

July 12, 2017

KATHLEEN HOFFMAN
v.
FABRISSE GREGOIRE OYEKET, ET AL.

         SECTION “F”

          ORDER AND REASONS

          MARTIN L.C. FELDMAN U.S. DISTRICT JUDGE.

         Before the Court is the plaintiff's motion to remand. For the reasons that follow, the motion is GRANTED.

         Background

         This personal injury case arises out of an automobile accident.

         On December 29, 2015, Kathleen Hoffman was driving home to St. Bernard Parish from work in the Central Business District in New Orleans. At the split of the Pontchartrain Expressway and I-10 East, Fabrisse Oyeket attempted to change lanes in his 18 wheeler semi-truck. As he was attempting to merge into Ms. Hoffman's lane, he struck her vehicle from behind.

         Alleging that she was injured as a result of defendants' negligence, on December 29, 2016, Ms. Hoffman sued Fabrisse Oyeket, Oyeket Transport, Cypress Insurance Co., and XYZ Corp. in state court. The defendants removed the suit to this Court on April 26, 2017, invoking this Court's diversity jurisdiction. The parties are diverse. The plaintiff is domiciled in Louisiana. Fabrisse Oyeket and Oyeket Transport are domiciled in Alabama, and Cypress Insurance Company is domiciled in California. Ms. Hoffman now seeks to remand her lawsuit back to state court on the ground that removal was untimely, or, alternatively, because the amount in controversy requirement for diversity jurisdiction has not been established.

         I. Standard for Removal A.

         The removing defendants carry the burden of showing the propriety of this Court's removal jurisdiction. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). Remand is proper if at any time the Court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Given the significant federalism concerns implicated by removal, the removal statute is strictly construed “and any doubt about the propriety of removal must be resolved in favor of remand.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008)(citation omitted); Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007)(citations omitted).

         For a defendant to invoke the Court's removal jurisdiction based on diversity, "the diverse defendant must demonstrate that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332 are satisfied, " including that the citizenship of every plaintiff is diverse from the citizenship of every defendant, and the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332; Smallwood v. Ill. Cent. R.R. Co., Inc., 385 F.3d 568, 572 (5th Cir. 2004)(en banc).

         B.

         A defendant must file a notice of removal within 30 days of service of the petition. 28 U.S.C. § 1446(b). “[I]f the case stated by the initial pleading is not removable, ” the defendant may remove the case within 30 days of receiving 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 had become removable.” 28 U.S.C. § 1446(b)(3).

         Section 1446(b) calls for the application of a two-step test for determining whether a defendant timely removed a case. See Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). First, the Court must determine whether the case could be removed based on the initial pleading under § 1446(b)(1). The 30 day time period in which a defendant must remove a case “starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court.” Id. at 163. Application of this bright line rule, the Fifth Circuit instructs, requires a plaintiff who wishes to trigger the 30 day time limit at the defendant's receipt of the initial pleading to specifically allege in that initial pleading that damages are in excess of $75, 000. Id. Notably, a defendant's subjective knowledge about the amount in controversy is not relevant for purposes of starting the 30 day clock. Id. Pre-suit settlement demands and medical bills do not cause the 30 day clock to run if the later receipt of a pleading does not itself reveal on its face that the case is removable. Id. at 162-63; see also Schielder v. Kmart Corp., No. 00-2757, 2000 WL 1511182, at *1 (E.D. La. Oct. 10, 2000) (“The thirty-day window only opens upon the receipt of a pleading or other paper after the Defendant has been properly served with a complaint”)(emphasis in original).

         Second, if the initial pleading does not “affirmatively reveal on its face” that the amount in controversy exceeds $75, 000, the defendant may remove the case within 30 days of receiving “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.” 28 U.S.C. § 1446(b)(3). “The information supporting removal in a copy of an amended pleading, motion, order or other paper must be ‘unequivocally clear and certain' to start the time limit running for a notice of removal under the second paragraph of section 1446(b).” Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002). This “other paper” must be received after the initial pleading in order to start the 30 day clock. Chapman, 969 F.2d at 164. If a case is not originally removable due to generic damages allegations in a state court pleading, responses to discovery ...


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