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Grace v. Progressive Casualty Insurance Co.

United States District Court, E.D. Louisiana

March 11, 2019

VICTORIA GRACE, Plaintiff
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, ET AL. Defendants

         SECTION: “E” (5)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Victoria Grace's motion to remand this case to state court.[1] Defendant Michael Portuondo opposes the motion.[2] For the reasons that follow, the motion is DENIED.

         BACKGROUND

         According to the state court petition, on September 12, 2017, Plaintiff was riding a bicycle when Defendant Portuondo opened the door of his vehicle, striking her and causing her to fall of her bicycle.[3] She alleges she sustained injuries to her head, legs, upper extremities, and spine.[4]

         According to the instant motion, on August 8, 2018, counsel for Plaintiff sent Defendant Progressive Casualty Insurance Company (“Progressive”) a letter offering to settle Plaintiff's claims for $100, 000, the limits of Portuondo's insurance policy.[5]Progressive rejected the settlement demand.[6] In his opposition to the instant motion, Portuondo admits he was aware of the settlement demand and of Plaintiff's medical expenses prior to commencement of the instant suit.[7]

         On September 6, 2018, Plaintiff filed a petition in the Civil District Court for the Parish of Orleans against Portuondo; Progressive, which was Portuondo's insurer; and Government Employees Insurance Company (“GEICO”), which was Plaintiff's insurer.[8]Portuondo was served on September 14, 2018.[9] Plaintiff and Portuondo agree Progressive was served on September 17, 2018.[10] Plaintiff represents GEICO was served on September 14, 2018, [11] and Portuondo represents GEICO was served on September 17, 2018.[12] This inconsistency is not material to the instant motion.

         On November 30, 2018, Portuondo served on Plaintiff a request that she admit her total damages did not exceed $75, 000.[13] On December 6, 2018, Plaintiff denied the request.[14]

         On January 4, 2019, Defendant Michael Portuondo removed the case to this Court.[15] On January 14, 2019, Plaintiff filed the instant motion, arguing that the Notice of Removal was untimely because it was filed more than 30 days after the filing of her state court petition.[16] Defendant opposes, arguing his petition was timely because he was first put on notice the amount-in-controversy exceeded $75, 000 by Plaintiff's denial of his request for admission on December 6, 2018, less than 30 days before he filed the Notice of Removal.[17]

         LEGAL STANDARD

         Federal courts are courts of limited jurisdiction and possess only the authority conferred upon them by the United States Constitution or by Congress.[18] Federal law allows for state civil suits to be removed to federal courts in certain instances. Generally, removal jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:

Except as otherwise expressly provided by [an] Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.[19]

“The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”[20]

         28 U.S.C. § 1446 governs the procedure for removal. It provides the following time limits for filing notices of removal:

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 upon which such action or proceeding is based . . .
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 ascertained that the case is one which is or has become removable.[21]

         ANALYSIS

         In the instant motion, Plaintiff argues that, because Portuondo knew of her $100, 000 settlement demand and her medical expenses prior to the filing of her suit, the filing of the state court ...


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