Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Dolgencorp, LLC

United States District Court, M.D. Louisiana

April 9, 2019

LEROY JOHNSON
v.
DOLGENCORP, LLC

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         REPORT AND RECOMMENDATION

         Before the Court is a Notice and Motion to Remand (the “Motion to Remand”)[1] filed by plaintiff, Leroy Johnson (“Plaintiff”). DG Louisiana, LLC, “incorrectly captioned ‘Dolgencorp, LLC d/b/a Dollar General, '” (hereinafter referred to as “DG Louisiana”) has filed an Opposition to the Motion to Remand, [2] and Plaintiff has filed a Response.[3] For the reasons set forth herein, the undersigned RECOMMENDS[4] that the Motion to Remand[5] be DENIED.

         In the event this recommendation is adopted, the undersigned further RECOMMENDS that this matter be referred to the undersigned for a scheduling conference.[6]

         I. Background

         On May 23, 2018, Plaintiff filed a Petition for Damages (the “Petition”) in state court seeking to recover damages for injuries allegedly sustained while “leaving the Dollar General Store located off Hwy 1 South in Donaldsonville, Louisiana when [Plaintiff] stepped out of his car and his leg became entrenched in a deeply embedded unleveled pot hole.”[7] Plaintiff's Petition does not set out any specific injuries; instead, Plaintiff contends that he seeks to recover damages for “past, present and future pain and suffering, ” “past, present and future medical expenses, ” “humiliation and embarrassment, ” “inconvenience, ” and “loss of enjoyment of life.”[8]

         On August 31, 2018, DG Louisiana filed a Notice of Removal asserting that this Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because the parties are completely diverse and the amount in controversy exceeds $75, 000, exclusive of interest and costs.[9] With respect to the amount in controversy, DG Louisiana asserts that it was served with the Petition on May 29, 2018, [10] but that the Petition did not include any information that put DG Louisiana on notice of the potential amount in controversy.[11] DG Louisiana further explains that it filed a Dilatory Exception of Vagueness and Answer with Jury Demand in the state court proceedings on August 29, 2018, and that on August 30, 2018, “Plaintiff's counsel sent an e-mail to undersigned counsel, informing undersigned counsel that the damages in this matter exceed $75, 000.00, exclusive of interest and costs.”[12] Based on that email, DG Louisiana filed its Notice of Removal the following day.

         On September 27, 2018, Plaintiff filed the instant Motion to Remand.[13] Plaintiff's sole argument in favor of remand is that the removal was not filed within 30 days of May 29, 2018 - the date both parties agree DG Louisiana was served.[14]

         II. Law and Analysis

         A. Removal Standard

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[15] When original jurisdiction is based on diversity of citizenship, [16] the cause of action must be between “citizens of different States”[17] and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.”[18] In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court.[19] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[20] The removing party has the burden of proving federal diversity jurisdiction.[21] Remand is proper if at any time the court lacks subject matter jurisdiction.[22]

         B. The Notice of Removal Is Timely

         As noted above, Plaintiff's Motion to Remand is premised solely on his position that the removal was untimely. Plaintiff argues that his counsel informed DG Louisiana's claims representative in February 2018 (i.e., prior to the filing of the state court suit) that Plaintiff was scheduled to have knee surgery, as well as additional treatment and therapy.[23] Based on this information and Plaintiff's counsel's request for insurance information, [24] Plaintiff argues that “[t]he case stated in the original petition was removable, thus proper removal by defendant should have been within the first thirty days of service with a removal deadline of June 28, 2018.”[25] Additionally, Plaintiff characterizes the pre-suit discussion with DG Louisiana's claims representative as an “other paper” that, when combined with the May 23, 2018 service, should have triggered the second 30-day deadline to remove set forth in 28 U.S.C. § 1446(b)(3).

         The time limits for filing a notice of removal, which are provided in the removal procedure rules of 28 U.S.C. § 1446, are as follows:

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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.