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Bolyer v. Circle H Trucking of Ashley, L.L.C.

United States District Court, W.D. Louisiana, Monroe Division

May 10, 2018

KAREN BOLYER
v.
CIRCLE H TRUCKING OF ASHLEY, L.L.C. AND JONATHAN MCKELVEY

          TERRY A. DOUGHTY MAGISTRATE. Judge

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE

         Before 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 be DENIED.

         Background

         Karen 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.

         Defendants 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.

         Law and Analysis

         A 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.

         In this 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.[1] 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).[2] Although the parties cannot confer federal subject matter jurisdiction via consent, [3] the record establishes that the parties are completely diverse[4] and that the amount in controversy exceeded $75, 000 at the time of removal.[5] Thus, the sole issue is whether defendants complied with the procedural requirements of removal.

         The 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) & (3).[6]

         Here, 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:

         PRAYER FOR RELIEF

         As a 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 mental anguish;
• Past and future impairment;
• Past and future disfigurement;
• Cost of Court;
• Interest on damages allowable ...

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