United States District Court, E.D. Louisiana
ORDER AND REASONS
filed a motion to remand, alleging that defendants'
Notice of Removal was procedurally defective. Rec. Doc. 9-1
at 2. Defendants timely filed a response in opposition. Rec.
Doc. 12. For the reasons discussed below, IT IS
ORDERED that the motion to remand is
IS FURTHER ORDERED that the motion for
attorney's fees is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
filed a complaint against defendants Barry Stockstill and
Contract Freighters, Inc. (“CFI”) in Orleans
Civil District Court for injuries resulting from a motor
vehicle collision on January 29, 2018. Rec. Doc. 1-1 at 1.
Plaintiffs allege that defendant Barry Stockstill's
negligence in operating the vehicle, owned by CFI, caused the
collision, and that he was in the course and scope of his
employment with CFI at the time of the accident. Rec. Doc.
1-2. Defendants filed their answers in state court, denying
plaintiff's allegations and asserting that any damages
plaintiffs may have sustained were the result of
plaintiff's own negligence. Rec. Doc. 1-1 at 9-18.
Further, defendants asserted that they reserved their right
to remove the case at a later date as it was not facially
apparent from the petition whether the federal diversity
jurisdictional amount of $75, 000 in dispute was present.
Id. Defendants filed a notice of removal on October
3, 2018 on the basis of diversity jurisdiction. Rec. Doc. 1.
Defendants asserted that the parties had diverse citizenship
and the amount in controversy exceeded the $75, 000 minimum
amount, as stated in plaintiff's Offer of Judgment
provided to defendants on September 20, 2018. Id. at
filed the instant motion to remand and for attorney's
fees, claiming that defendants' removal notice was
procedurally deficient because it was untimely. Rec. Doc.
9-1. Defendants filed a response in opposition stating that
their notice of removal was timely filed within 30 days of
the point at which it became clear that plaintiff's
claims met the minimum threshold for diversity jurisdiction.
Rec. Doc. 12.
argue that defendants' notice of removal was untimely
because it was not filed within thirty days of
defendants' receipt of papers from which it was
ascertainable that the case was removable. Rec. Doc. 9-1 at
2-3. Although it was not facially apparent from the initial
pleadings that the jurisdictional amount was met, plaintiffs
state that they provided discovery responses and medical
records to defendants on April 20, 2018 demonstrating that
the value of the case was greater than $75, 000. Id.
at 5-6. Specifically, plaintiffs claim that Sonya Williams
stated her damages exceed $75, 000 in her response to
defendants' interrogatories and also provided medical
records disclosing that Ms. Williams underwent a Lumbar
Epidural Steroid Injection. Rec. Doc. 9-5 at 3. Therefore,
plaintiffs argue that defendants' thirty-day clock for a
timely removal began upon receipt of this information on
April 20, 2018, making the notice of removal filed on October
3, 2018 untimely.
oppose remand, arguing that their notice of removal was
timely because the thirty-day window did not begin to run
until they received plaintiff's Offer of Judgment on
September 20, 2018. Rec. Doc. 12. Defendants assert that the
documents provided by plaintiffs prior to the Offer of
Judgment were not sufficient to trigger removal because it
must be “unequivocally clear and certain” that
the amount in dispute is met so as to allow the defendant to
present the required summary judgment-type evidence in
support of the preponderance of evidence burden placed upon
him. Id. at 5. Defendants claim this burden was
first met on September 20, 2018 when plaintiffs provided
their formal Offer of Judgment letter and supporting
information reflecting continued treatment for ongoing
complaints and a second round of epidural steroidal
injections. Id. at 8. Defendants filed their notice
of removal on October 3, 2018, thirteen days after receipt of
the Offer of Judgment letter, and therefore argue that it was
Courts have original jurisdiction, called diversity
jurisdiction, over all civil actions where the matter in
controversy exceeds $75, 000 and is between citizens of
different states. 28 U.S.C. §1332(a). If a civil action
over which the district courts of the United States have
original jurisdiction is brought in a State Court, it
“may be removed by the defendant or defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). Defendants must
file a notice of removal pursuant to 28 U.S.C. §1446.
“[t]he notice of a 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 upon
which such action or proceeding is based, ”
28 U.S.C. § 1446(b)(1).
“if the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 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 ...