United States District Court, W.D. Louisiana, Lafayette Division
R. Summerhays Magistrate Judge.
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
the Court on assignment from the district judge, is a Motion
to Remand filed by Plaintiffs, Ron Addison Hayes
(“Hayes” or “Plaintiff”),
individually and on behalf of his three minor children, A.
Hayes, C. Hayes and L. Hayes, as well as Brandie Hayes
(collectively “Plaintiffs”) [Rec. Doc. 9] and
Defendants, F&M Pharmacists Specialty Pharmacy. Inc.,
Pharmacists Mutual Insurance Company. David McCoy and
Healthcare Providers Service Organization's (collectively
referred to as “F&M Pharmacists"')
Opposition thereto [Rec. Doc. 12]. For the reasons that
follow, the Court will recommend that Plaintiffs' motion
and Procedural Background
filed this action in the Fifteenth Judicial District Court,
Lafayette Parish, on January 27, 2016, naming F & M
Specialty Pharmacy Inc. as a defendant. R. 1-2. On August 2,
2016, Plaintiffs filed a First Supplemental and Amending
Petition adding Defendant Pharmacists Mutual Insurance
Company. R. 16. On March 8, 2017, Plaintiffs filed a Second
Supplemental and Amending Petition adding Healthcare
Providers Service Organization and David McCoy as defendants.
R. 18. Plaintiffs did not amend any paragraph in the
original Petition as to the merits of their case; therefore,
the Petition and both Amended Petitions contain the following
had a double lung transplant at Ochsner Medical Center on
November 6, 2014 due to advanced cystic fibrosis. R.
12-2, p. 2. On or about February 2, 2015, Defendants
“negligently filled at least one prescription of
Prograf and/or Tacrolimus for [Hayes] which was delivered to
[Hayes] at his home in Lafayette, Louisiana. R.1-2, ¶ 1.
Hayes took the prescription(s) as directed. Id.
Later, Hayes learned that the prescription(s) was 10 times
the prescribed dosage─5 mg instead of 0.5 mg.
Id. Plaintiffs further alleged that, “[g]iven
that this medication was needed for [Hayes] as he recovered
from lung transplant surgery, the effects of taking the wrong
dosage has caused significant injury to Petitioners.”
Id. Plaintiffs alleged that as a result of the high
dosage Hayes suffered “serious and permanent injuries
that resulted in general and special damages including but
not limited to past and future physical and mental pain and
suffering, past and future loss of earnings and loss of
earning capacity, lost chance of survival, healing and/or
recovery, that necessitated that he incur past and future
medical expenses, past and future expenses for his personal
care and services, past and future disability, past and
future disfigurement, past and future loss of enjoyment of
life, and any and all other damages available under the law,
all of which entitle him to recover a sum reasonable in the
premises.” Id. at ¶ 5. Petitioners
further alleged that Hayes' wife and children suffered a
loss of consortium, companionship, society and support as a
result of Defendants' negligence. Id. at
¶6. Petitioners alleged that they were entitled to
punitive damages because Defendants' actions constituted
“gross negligence or willful or wanton
misconduct.” Id. at ¶ 8. Finally,
Petitioners stated: “At this time, it is not believed
that total damages for petitioners exceed $75, 000.00 at this
time, exclusive of interest and costs. Plaintiffs reserve
their right to amend this Petition as more facts are
known.” Id. at ¶ 9.
removed this action on August 27, 2018. R. 1. In their Notice
of Removal Defendants represented that on “August 1,
2018, Plaintiffs counsel  sent a settlement demand in which
for the first time he estimated the plaintiffs damages to be
$9, 500, 000.00.” R. 1, p. 3; R. 1-5. They contended
that, while Defendants removed this action over one year
after it was filed, “removal is timely under 28 U.S.C.
§ 1446 (b) as it is being filed within thirty (30) days
after receipt by defendant through service or otherwise of an
‘other paper' from which it may first be
ascertained that this case is one which is removable.”
R. 1, p. 4. Defendants further contended that
Plaintiff acted in bad faith by concealing the actual amount
of damages in order to prevent Defendants from removing the
action and manipulate the forum. Id.
filed the instant motion to remand claiming that Defendants
improperly removed the action for lack of timeliness.
Plaintiffs rely on the second paragraph of 28 U.S.C. §
1446(b), which establishes the procedure for removal of
actions that were not initially removable, but subsequently
become removable. That provision provides:
If the case stated by the initial pleading is not removable,
a notice of removal may be filed within thirty days after
receipt by the defendant, 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, except that a case
may not be removed on the basis of jurisdiction conferred by
section 1332 of this title more than 1 year after
commencement of the action.
28 U.S.C. § 1446(b) (emphasis supplied). Plaintiffs
claim that removal is untimely because more than one year
elapsed between the filing of his petition and
Defendants' notice of removal.
oppose Plaintiffs' motion maintaining that Plaintiffs
acted in bad faith by concealing the actual amount of damages
in order to prevent Defendants from removing the action.
Defendants contend, “[f]rom the inception of this
lawsuit, plaintiffs were aware that damages in excess of $75,
000 would be sought, but engaged in a pattern of deception to
remain in state court.” R. 12, p. 7.
general proposition, cases that are not initially removable,
but subsequently become removable, may not be removed more
than one year after the commencement of the action.
Johnson v. Heublein, Inc., 227 F.3d 236, 241 (5th
Cir.2000) (“The one-year limitation on removals applies
only to the second paragraph of [§ 1446(b)], i.e. only
to cases that are not initially removable); Badon v. RJR
Nabisco Inc., 224 F.3d 382, 389 (5th Cir.2000)
(“We have clearly held that the ‘except'
clause applies only to cases governed by the second paragraph
of section 1446(b).”). In Louisiana, the one-year time
limit runs from the date the lawsuit is filed. See
La.C.C.P. art. 421; New York Life Ins. Co. v.
Deshotel, 142 F.3d 873, 885 (5th Cir.1993). This case
commenced on January 27, 2016, and was removed on August 27,
2018, more than one year after commencement. Thus, removal is
untimely unless an equitable estoppel exception to the
one-year time limit applies.
“conduct of the parties” is considered to
determine whether “it is equitable to strictly apply
the one-year limit” under the rule recognized by the
Fifth Circuit in Tedford v. Warner-Lambert Co., 327
F.3d 423, 426 (5th 2003). The Tedford rule permits
equitable tolling of deadlines only where the facts
demonstrate that “a plaintiff has attempted to
manipulate the statutory rules for determining federal
removal jurisdiction, thereby preventing the defendant from
exercising its rights.” Tedford, 327 F.3d at
427-29. “Courts have narrowly drawn this equitable
exception by requiring clear evidence rather than mere
suspicion of forum manipulation.” Space Maker
Designs, Inc. v. Steel King Indus., Inc., 2010 WL
2680098, at ...