United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court is the United States Magistrate Judge's
Report and Recommendation (Doc. 23), issued
pursuant to 28 U.S.C. § 636(b)(1), addressing Plaintiff
Brown & Root Industrial Services, LLC's
Motion to Remand (Doc. 6). The Magistrate
Judge recommended that the motion be denied. (Doc. 23 at p.
18). Under 28 U.S.C. § 636(b)(1)(C) and Federal Rule of
Civil Procedure 72, the parties had fourteen days from the
date they received the Report and Recommendation to file
written objections to the proposed findings of fact,
conclusions of law, and recommendations therein. Plaintiff
timely objected to the Report and Recommendation. (Doc. 24).
Although the Court follows a slightly different path than the
Magistrate Judge, it reaches the same destination, and
Plaintiffs Motion to Remand (Doc. 6) is
March 27, 2017, Plaintiff Brown & Root sued Defendant
Gregory Nelson for $3, 264, 965.00 in the 19th
Judicial District Court, Parish of East Baton Rouge,
Louisiana stemming from a construction contract. (Doc. 1-2).
Plaintiffs Chief Operating Officer ("COO") alleges
that Defendant told him that he had several homes, including
ones in New York City, Miami and New Orleans. (Doc. 6-2 at
¶ 4). Defendant also allegedly told the COO that he grew
up in New York and "always considered it to be his
home." Id. at ¶ 5. After Plaintiff filed
suit, the COO allegedly "did some research and found
that" Defendant and his wife owned an apartment located
at 38 W 26th Street, New York, NY. Id. at ¶ 7.
for the Plaintiff attempted to mail a copy of the petition
and citationto Defendant at his New York apartment by
certified mail. (Doc. 6-1 at p. 1). A United States Postal
Service receipt reflects that it was delivered on March 31,
2017, but the signature on the receipt is illegible.
Id. at p. 4, 6. Counsel for the Plaintiff also sent
a copy of the petition and citation to the same address on
March 28, 2017, by FedEx. Id. at p. 2. It was
delivered on March 31, 2017 and signed for by an unknown
individual named "T. Trevor." Id. at p.
10, 2017, after Defendant had failed to respond to the suit,
the state court entered a default judgment in the amount of
$3, 264, 965.00. (Doc. 1-2 at p. 20). On June 2, 2017,
Defendant visited his New York apartment for the first time
in several months. (Doc. 1-3 at p. 3). When he arrived, he
allegedly found the FedEx envelope with a copy of the
petition and citation, and he learned that he had been sued
by Brown & Root. Id. The next day, he claims
that he checked his mailbox and learned that a default
judgment had been entered against him.
claims that he has lived in Miami Beach, Florida since 2012.
(Doc. 1-3 at ¶ 2). His children attend school there, he
is registered to vote there, and he has a Florida
driver's license. Id. at ¶ 3-5. Defendant
alleges that although he owns the New York apartment where
Plaintiff sent the petition and citation, he only spends
three to six weeks there each year for holidays, business
trips, and to visit his mother who also lives in New York.
Id. at ¶ 11.
9, 2017, a week after learning of the lawsuit, Nelson removed
the case to this Court, invoking the Court's diversity
jurisdiction under 28 U.S.C. § 1332 and related-to
bankruptcy jurisdiction under 28 U.S.C. §
1334(b). (Doc. 1). Plaintiff then filed the pending
Motion to Remand, arguing that Defendant's Notice of
Removal is untimely because Defendant filed it more than
thirty days after it served Defendant with the petition and
citation. (Doc. 6-3 at p. 3). Plaintiff also filed a Motion
for Relief from Judgment under Federal Rule of Civil
Procedure 60(b)(4). (Doc. 4). Plaintiff argues that the
default judgment entered against him should be vacated
because Plaintiff failed to properly serve him with the state
court petition and, as a result, the Court lacks personal
jurisdiction. (Doc. 4-1 at p. 1). The Court also permitted
Defendant to delay filing its opposition to the Motion for
Relief from Judgment until twenty-one days after the
Court's ruling on the pending Motion to Remand. (Doc.
may remove an action from state court to federal court if the
action is one over which the federal court possesses subject
matter jurisdiction. 28 U.S.C. § 1441(a). Defendant, the
removing party, bears the burden of establishing that federal
jurisdiction exists and that removal was proper. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995). In considering a challenge to subject matter
jurisdiction, the district court is "free to weigh the
evidence and resolve factual disputes in order to satisfy
itself that it has the power to hear the case."
Smith v. Reg'l Transit Auth., 756 F.3d 340, 347
(5th Cir. 2014) (internal citation omitted).
argues that this action should be remanded because mailing
the petition and citation to Defendant's New York
apartment triggered the 30-day period for Defendant to file a
notice of removal, and that time had expired when Defendant
filed his notice of removal. (Doc. 6-3 at p. 3). Defendant
claims that he was never properly served with process under
Louisiana's long-arm statute, and therefore his notice of
removal was timely. (Doc. 15 at p. 4).
U.S.C. § 1446(b)(1), which governs the timeliness of a
notice of removal, provides:
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief ...