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Wawrzycki v. Bales

United States District Court, E.D. Louisiana

October 4, 2019

MICHAEL WAWRZYCKI, ET AL.
v.
JESSICA BALES, ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is a motion[1] by plaintiffs Michael Wawrzycki (“Wawrzycki”) and Lenore Tolcser (“Tolcser”) (collectively, the “plaintiffs”) to remand the above-captioned matter to Louisiana state court and for costs and attorneys' fees incurred in connection with filing this motion pursuant to 28 U.S.C. § 1447. For the following reasons, the motion is granted in part and denied in part.

         I.

         This case arises out of a motor vehicle accident that injured the plaintiffs on June 25, 2018.[2] The plaintiffs sued eleven defendants in the Civil District Court for the Parish of Orleans on June 17, 2019, alleging that the accident occurred as a result of the negligence of defendant, Jessica Bales, who was operating a motor vehicle with the consent and permission of its owners, her parents, David and Anna Bales.[3]

         On May 12, 2019, the plaintiffs sent a pre-suit settlement demand to the adjuster for defendant, Acuity Mutual Insurance Company's (“Acuity”), for payment of the policy limit of $500, 000.[4] The demand also included an itemized list of medical expenses incurred by Wawrzycki as a result of the accident as of that date, which totaled $11, 849.51.[5]

         As stated previously, plaintiffs filed suit on June 17, 2019.[6] On July 9, 2019, Wawrzycki, representing himself and Tolcser, sent a post-suit settlement offer to the defendants via email.[7] The post-suit settlement offer detailed medical treatment Wawrzycki had undergone as of July 9, 2019, and estimated Wawrzycki's damages as a result of mental and physical pain and suffering and loss of enjoyment of life; increased susceptibility to future injury; past and future medical costs; and lost earning and loss of earning capacity.[8] The offer estimated Tolcser's damages for loss of consortium and society and loss of use of her car, which was damaged in the collision.[9] While the plaintiffs deleted the estimated dollar amount in their settlement offer submitted to the Court, the plaintiffs allege, and the defendants do not dispute, that the offer was above $75, 000.[10]

         By July 12, 2019, Anna Bales, David Bales, Acuity, Tricor, Inc. (“Tricor”), and Frontier Adjusters, Inc. (“Frontier”) (collectively, the “defendants”) had all been served with the petition for damages.[11]

         On August 2, 2019, Wawzrycki and counsel for the defendants engaged in settlement negotiations via email that were ultimately unsuccessful.[12] All negotiations ceased after the plaintiffs refused to accept the defendants' final offer of $75, 000.[13]

         On August 23, 2019, the defendants removed the case to this Court on the basis of federal diversity jurisdiction by filing a Petition for Removal (“the Petition”).[14] The plaintiffs filed the instant motion on August 30, 2019, arguing that the Petition is untimely because the defendants removed the case more than thirty days after they received notice that the amount in controversy exceeded $75, 000.[15] The defendants filed an opposition to the motion to remand on September 16, 2019, [16] and the plaintiffs filed a reply to the opposition on September 20, 2019.[17]

         II.

         Under 28 U.S.C. § 1441(a), “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, ” unless Congress provides otherwise. “The removing party bears the burden of establishing that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Manguno v. Prudential Prop. & Cas. Co., 276 F.3d 720, 723 (5th Cir. 2002).

         To remove a case from state to federal court, a defendant must file a notice of removal. 28 U.S.C. § 1446(a). Section 1446(b)(1) states that “[t]he 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.” “[I]f 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.” 28 U.S.C. § 1446(b)(3). “If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper.'” 28 U.S.C. § 1446(c)(3)(A).

         Pursuant to 28 U.S.C. § 1332, a district court has original jurisdiction over cases in which the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the parties are citizens of different states. It is uncontested that the parties are completely diverse, as the plaintiffs are both Louisiana citizens, and none of the defendants are citizens of Louisiana.[18] However, the parties dispute when the defendants received an “other paper” from which it could first be ascertained that the amount in controversy exceeded $75, 000 and triggered the defendants' thirty days to remove the case under § 1446(b)(3).[19]

         III.

         The plaintiffs argue that the Petition is untimely because it was filed more than thirty days after July 12, 2019, the day the last defendant was served with the Petition for Damages.[20] The plaintiffs also argue that the defendants had notice that the amount in controversy exceeded $75, 000 based on the pre-suit settlement demand sent on May 12, 2019.[21]

         The defendants argue in response that the thirty-day period to remove did not start to run until August 2, 2019, when the plaintiffs definitively rejected their settlement offer of $75, 000.[22] The defendants contend that the “[p]laintiffs' argument is based upon initial settlement demands in this case, which were obviously simply starting points for further settlement discussions.”[23] The defendants further argue that “[w]hile plaintiffs' initial Settlement Offer was above $75, 000, plaintiffs substantially reduced their demand throughout the August 2, 2019 settlement ...


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