United States District Court, M.D. Louisiana
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
the Court is a Motion to Remand filed by plaintiff, Kimberlana
Elkins (“Plaintiff”). Defendant, Geico Casualty
Insurance Company (“Geico”), has filed an
Opposition. For the reasons set forth herein, the
undersigned recommends that the Motion to Remand be denied.
event this recommendation is adopted, the undersigned further
recommends that this matter be referred to the undersigned
for a scheduling conference.
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. 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.” 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.
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. Although the parties appear
to be completely diverse,  and Plaintiff agrees that the amount in
controversy likely exceeds $75, 000 exclusive of interest and
costs,  Plaintiff asserts that Geico's removal
was untimely and therefore remand is appropriate.
Law and Analysis
The Notice of Removal is Timely
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.
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.'” 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.” 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.
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. This Court
has explained that the “standard for triggering removal
upon a subsequent ‘amended pleading, motion, order, or
other paper,' as provided in § ...