United States District Court, E.D. Louisiana
ORDER AND REASONS
L.C. FELDMAN U.S. DISTRICT JUDGE.
the Court is the plaintiff's motion to remand. For the
reasons that follow, the motion is GRANTED.
personal injury case arises out of an automobile accident.
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.
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
Standard for Removal A.
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).
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).
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).
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).
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 ...