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Elkins v. Bradshaw

United States District Court, M.D. Louisiana

April 24, 2019

KIMBERLANA ELKINS
v.
JOE EDWARD BRADSHAW and GEICO CASUALTY INSUANCE COMPANY

          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 Motion to Remand[1] filed by plaintiff, Kimberlana Elkins (“Plaintiff”). Defendant, Geico Casualty Insurance Company (“Geico”), has filed an Opposition.[2] For the reasons set forth herein, the undersigned recommends[3] that the Motion to Remand[4] 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.

         I. Background

         Plaintiff filed a Petition for Damages (the “Petition”) in state court on February 20, 2018 against Geico and Joe Edward Bradshaw for injuries allegedly sustained in a March 31, 2017 automobile accident.[5] Per her Petition, Plaintiff seeks damages for, inter alia, “bodily injuries, ” “mental anguish and distress, ” “medical expenses, ” “pharmaceutical expenses, ” “loss of income/wages, ” “apprehension of insufficient medical attention to his [sic] injury, ” “inconvenience, ” “fear and fright, ” “embarrassment, humiliation, and aggravation, ” and “loss of ability to participate in normal activities.”[6] There is no specific information in the Petition regarding Plaintiff's particular injuries, nor does the Petition include any information regarding the amount of Plaintiff's medical expenses or lost wages.

         On November 26, 2018, Geico filed a Notice of Removal asserting that this Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[7] Although the parties appear to be completely diverse, [8] and Plaintiff agrees that the amount in controversy likely exceeds $75, 000 exclusive of interest and costs, [9] Plaintiff asserts that Geico's removal was untimely and therefore remand is appropriate.

         II. Law and Analysis

         A. The Notice of Removal is Timely

         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 filed in court and is not required to be served on the defendant, whichever period is shorter.
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.[10]

         With respect to the 30-day period from the defendant's receipt of the initial pleading, the Fifth Circuit has provided a bright line rule that “the thirty-day removal period under the first paragraph is triggered only where the initial pleading ‘affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court.'”[11] If a plaintiff wants the 30-day period to run from the defendant's receipt of the initial pleading, a plaintiff should place in that pleading “a specific allegation that damages are in excess of the federal jurisdictional amount.”[12] The initial pleading in this action does not contain a specific allegation that damages are in excess of the federal jurisdictional amount. Accordingly, the 30-day period for removing the action was not triggered by service of the initial pleading.

         With respect to triggering the 30-day time period from defendant's receipt “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, ” as provided in § 1446(b)(3), the Fifth Circuit has held that the 30-day removal period is triggered only where jurisdiction is “unequivocally clear and certain” from the document.[13] This Court has explained that the “standard for triggering removal upon a subsequent ‘amended pleading, motion, order, or other paper,' as provided in § ...


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