United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is Plaintiff Kim Saacks' “Motion to
Remand” (Rec. Doc. 5), “Target Corporation's
Memorandum in Opposition to Plaintiff's Motion to
Remand” (Rec. Doc. 12, and “Plaintiff's Reply
Memorandum in Support of Plaintiff's Motion to
Remand” (Rec. Doc. 16). For the foregoing reasons,
IT IS ORDERED that Plaintiff's Motion to
Remand is GRANTED.
AND PROCEDURAL HISTORY
Kim Saacks alleges that she suffered personal injuries as a
result of a slip and fall accident at a Target store located
in Metairie, Louisiana (Rec. Doc. 1-1). Plaintiff originally
filed suit in the 24th Judicial District Court for the Parish
of Jefferson, State of Louisiana, against two defendants:
Target Corporation and Richard's Clearview, LLC (Rec.
Doc. 1-1). Diversity jurisdiction did not exist at this stage
in the 2009 filed proceedings because even though Target is
citizen of Minnesota, both Plaintiff and Defendant
Richard's Clearview, LLC are citizens of Louisiana (Rec.
Doc. 1-1). In November 2014, Plaintiff settled and dismissed
all of her claims against the non-diverse Defendant
Richard's Clearview, LLC (Rec. Doc. 1-1).
concedes that it was not able to seek removal to federal
court because more than one year had lapsed since the initial
action was filed. 28 U.S.C. § 1446. In May 2017,
Plaintiff then filed her Second Supplemental and Amending
Petition for damages, wherein she named ACE American
Insurance Company (“ACE”) as a Defendant (Rec.
Doc. 1-1). Defendant ACE is a citizen of Pennsylvania (Rec.
Doc. 1). Given that there was now complete diversity and all
other requirements for jurisdiction were met, Defendant
ACE-with Target's consent-removed the matter to the
Eastern District of Louisiana (Rec. Doc. 1-5). Plaintiff
proceeded to file a “Notice of Voluntary Dismissal of
Defendant Ace American Insurance Company pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(i)” (Rec. Doc. 3).
AND FACTUAL FINDINGS
district court must remand a case to state court if “at
any time before final judgement it appears that the district
court lacks subject matter jurisdiction.” 28 U.S.C.
1447(c); Preston v. Tenet Healthsys. Mem'l Med. Ctr.,
Inc., 485 F.3d 804, 813 n.3 (5th Cir. 2007). The burden
of establishing that federal jurisdiction exists in a case
“rests on the party seeking the federal forum.”
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th
Cir. 2001). The removal statute is to be strictly construed.
Gasch v. Hartford Accident & Indem. Co., 491
F.3d 278, 281 (5th Cir. 2007). Any “doubts regarding
whether removal jurisdiction is proper should be resolved
jurisdiction.” Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir. 2000) (emphasis added). In order
to determine whether jurisdiction is present, a court must
“consider the claims in the state court petition as
they existed at the time of removal.” Maguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002).
to 28 U.S.C. § 1332(a)(1), federal district courts have
“original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between citizens of
different States.” Plaintiff does not contend that
Defendant Ace's removal was originally improper.
Plaintiff argues the act of dismissing claims against the
removing Defendant ACE divests this court of diversity
correctly cites to a “well-settled principle that once
a court has diversity jurisdiction, subsequent developments
do not divest it of jurisdiction.” Rivers v.
Chalmette Med. Ctr., Inc., 805 F.Supp.2d 291, 295 (E.D.
La. Aug. 2, 2011).
are, however, exceptions to that principle notably where a
case becomes moot in the course of the litigation. See
Church of Scientology v. United States, 506 U.S. 9,
12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992); Walters v.
Edgar, 163 F.3d 430, 432 (7th Cir.1998). Or, if the
plaintiff amends away jurisdiction in a subsequent pleading,
the case must be dismissed. Rockwell Int'l Corp. v.
United States, 549 U.S. 457, 473-74, 127 S.Ct. 1397, 167
L.Ed.2d 190 (2007). And likewise if after the case is filed
it is discovered that there was no jurisdiction at the
outset, id. at 473, 127 S.Ct. 1397-not that this is
really an exception to the principle that jurisdiction, once
it attaches, sticks; it is a case in which there never was
federal jurisdiction. Cunningham Charter Corp. v.
Learjet, Inc., 592 F.3d 805, 807 (7th Cir. 2010)
Target argues that the original removal here was proper and
diversity jurisdiction vested upon the notice of removal
filed by Defendant Ace. However, Plaintiff's voluntary
dismissal of that removing Defendant prior to any answer from
that Defendant placed Plaintiff in the same position as if
the claims against that Defendant had never been filed, thus
negating the basis for removal. Maturin v. Commerce &
Indus. Ins. Co., No. 614-CV-00603, 2014 WL 2567150 (W.D.
La. June 6, 2014)(citing Harvey Specialty & Supply,
Inc. v. Anson Flowline Equip. Inc., 434 F.3d 320, 322-24
(5th Cir.2005)). Moreover, as noted earlier, the non-moving
Defendant Target concedes that the one-year limit of §
1446 prevented it from seeking removal in an otherwise
removable case based on diversity jurisdiction. Rather, after
foregoing its right to timely seek removal Target now seeks
in opposition to rely upon the removal notice timely filed by
the now dismissed Defendant Ace. There is no showing or claim
of bad faith or other reason that prevented Target from
timely removing this action. It chose to litigate this case
in state court for eight (8) years without ever seeking
removal to federal court and over two and a half (2
½ ) years after a clear basis existed to seek
removal. Under all of the above factual circumstances and
principles of law, Target's untimely attempt to litigate
in federal court is procedurally and substantively barred.
mindful that the one-year procedural bar to removal is
waivable if, among other reasons, there is convincing
evidence of manipulation by the Plaintiff. Plaintiff's
counsel's voluntary dismissal without prejudice of the
removing Defendant, Ace, soon after removal appears
questionable. However, Target has not asserted waiver
defenses based on bad faith or manipulation by
Plaintiff's counsel. Removal statutes are construed
strictly against removal and for remand, especially as here,