Opinion
Civil Action No. 00-2757; SECTION "C"(4).
October 9, 2000.
ORDER REASONS
Before the Court is Plaintiff's motion to remand this case to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana. For the following reasons, Plaintiff's motion is DENIED.
Statement of the Case
On June 5, 1999, Plaintiff Frankie Schielder, a Louisiana citizen, claims that he was injured while shopping at the Kmart Store No. 4810 in Metarie, Louisiana when he attempted to remove a battery from a display in the automotive department. While moving the battery, another battery allegedly fell on Plaintiff's leg and foot, and battery acid splashed up into his face. This caused Plaintiff to fall backwards, trip over some boxes that were present in the aisle, and hit the floor. As a result, Plaintiff suffered injuries to his lower back and a herniated lumbar disc at L5-S1. On December 22, 1999, Plaintiff's counsel contacted Kmart about Mr. Schielder's injuries and indicated a willingness to settle all claims against the company for $175,000 plus payment of medical expenses. The parties did not settle at that time, and Plaintiff filed suit in the 24th Judicial District Court for the Parish of Jefferson, serving Defendant with his complaint on June 6, 2000. The complaint did not specify the amount of damages sought by the Plaintiff. On August 15, 2000, Defendant served Plaintiff with Requests for Admissions, specifically asking plaintiff to admit or deny that the good faith amount in dispute was in excess of $75,000, exclusive of interests and costs. Plaintiff responded two days later by denying the request for the admission as premature. Within thirty days of receiving Plaintiff's response, Defendant filed a notice of removal to federal court based on this Court's diversity jurisdiction under 28 U.S.C. § 1332. The parties do not dispute diversity of citizenship, as Kmart is a Michigan corporation, and the Plaintiff's other behavior (i.e., the settlement letter) does not indicate any disagreement that the amount in controversy requirement has been satisfied. However, Plaintiff moves to remand this case back to state court, alleging that Defendant's removal of this case is untimely.
In Lund v. Wal-Mart Stores, Chief Judge McNamara remanded a case to state court because the defendant had not met its burden of proof to support federal diversity jurisdiction at the time of removal, even though the plaintiff did not dispute that the amount in controversy had been met. See 2000 WL 264003 (E.D. La.) (March 8, 2000). In this case, however, Defendant Kmart has offered sufficient evidence, through affidavits and other exhibits, to demonstrate by a preponderance of the evidence that the amount in controversy exceeds $75,000. Therefore, the Court will only address the issue of whether Defendant's removal was timely.
Removal
Removal of a case to federal court is proper under § 1441 for "any civil action brought in a State court of which the district courts of the United States have original jurisdiction. . . ." 28 U.S.C. § 1441. When it is not facially apparent from the face of the complaint that a case is removable, "a notice of removal may be filed within thirty 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).
In this case, the initial complaint did not specify the amount of damages. Plaintiff argues that other information provided to the Defendant — namely, the settlement letter — put the Defendant on notice that the case was removable, and therefore the thirty days began to run at the time of service of the initial complaint. The Fifth Circuit has already considered and rejected this argument. See Chapman v. Powermatic. Inc., 969 F.2d 160, 161-63 (5th Cir. 1992). The thirty-day window only opens upon the receipt of a pleading or other paper after the Defendant has been properly served with a complaint. Once the Defendant received Plaintiff's Response to his Request for Admissions, Defendant was obligated to remove the case within thirty days or waive its right to a federal forum. See Freeman v. Witco Corp., 984 F. Supp. 443, 447 (E.D. La. 1997) (finding that party's Responses to Request for Admission constitutes "other paper" under § 1446(b)). Defendant filed its Notice of Removal within the appropriate time and the case is now properly before this Court.
Therefore, Plaintiff's Motion to Remand is DENTED.