United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY MAGISTRATE. Judge
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
the undersigned Magistrate Judge, on reference from the
District Court, is a motion to remand [doc. # 9] filed by
plaintiff Karen Bolyer. The motion is opposed. For reasons
set forth below, it is recommended that the motion to remand
Bolyer filed the above-captioned suit on July 11, 2017,
against defendants Circle H Trucking of Ashley, L.L.C.
(“Circle H”) and Jonathan McKelvey in the Fourth
Judicial District Court for the Parish of Morehouse, State of
Louisiana. (Petition). Bolyer seeks recovery for severe
personal injuries and damages that she sustained following a
June 16, 2017, motor vehicle accident that occurred when her
stationary vehicle was struck from behind by a Circle H
logging truck operated by McKelvey.
were personally served with the state court petition on
September 30, 2017. (Affidavits; M/Remand, Exh. A). On March
2, 2018, defendants removed the case to federal court on the
basis of diversity jurisdiction, 28 U.S.C. § 1332.
(Notice of Removal). On March 29, 2018, plaintiff filed the
instant motion to remand on the grounds that removal
purportedly was untimely. 28 U.S.C. § 1447(c).
Defendants filed their opposition to the motion to remand on
April 30, 2018. [doc. # 14]. Plaintiff did not file a reply,
and the time to do so has lapsed. See Notice of
Motion Setting [doc. # 10]. Thus, the matter is ripe.
defendant may remove an action from state court to federal
court, provided the action is one in which the federal court
may exercise original jurisdiction. Manguno v. Prudential
Property and Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing 28 U.S.C. § 1441(a)).
The removing defendant bears the burden of establishing
federal subject matter jurisdiction and ensuring compliance
with the procedural requirements of removal. Id.
Because federal courts are courts of limited jurisdiction, a
suit is presumed to lie outside this limited jurisdiction
unless and until the party invoking federal jurisdiction
establishes to the contrary. Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation
omitted). The removal statutes are strictly construed in
favor of remand. Manguno, supra.
case, defendants invoked the court's subject matter
jurisdiction via diversity, which requires complete diversity
of citizenship between plaintiff and defendants, and an
amount in controversy greater than $75, 000. 28 U.S.C. §
1332(a). Plaintiff does not contest that the parties are
completely diverse, and that the amount in controversy
exceeds $75, 000. (Pl.M/Remand, Memo., pg. 7). Although the
parties cannot confer federal subject matter jurisdiction via
consent,  the record establishes that the parties
are completely diverse and that the amount in controversy
exceeded $75, 000 at the time of removal. Thus, the sole
issue is whether defendants complied with the procedural
requirements of removal.
removal process is fraught with procedural pitfalls for the
unwary defendant including, but not limited to, the temporal
filing limitations at issue here. Under the removal statute,
a defendant must file a notice of removal: 1) within 30 days
after the defendant receives, through service or otherwise, a
copy of the initial pleading setting forth the claim for
relief, or the summons, whichever period is shorter; or 2) if
the case “stated by the initial pleading is not
removable, ” within 30 days after defendant's
receipt, “through service or otherwise, of 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)(1) &
plaintiff contends that the allegations in her original
petition provided defendants with sufficient notice to
trigger the initial 30 days window for removal. Specifically,
she emphasizes that she alleged that her damages far exceeded
the minimum jurisdictional limits for the right to a jury
trial (i.e., $50, 000), and also included unspecified damages
claims. These allegations appear in the prayer, as follows:
result of Defendants' actions and omissions, Plaintiff
sustained severe injuries, which resulted in physical pain,
mental anguish, and other medical problems. In all reasonable
probability, Plaintiff's physical pain, physical
impairment, and mental anguish will continue indefinitely.
Plaintiff have [sic] been damaged in a sum far in
excess of the minimum jurisdictional limits of this Honorable
Court, for which she now sues. Plaintiff prays for
relief and judgment including but not limited to:
• Past and future medical damages;
• Past and future economic damages including but not
limited to lost wages and loss of earning capacity;
• Past and future physical pain and suffering and
• Past and future impairment;
• Past and future disfigurement;
• Cost of Court;
• Interest on damages allowable ...