Ashmore v. Dolgencorp, LLC
| Decision Date | 03 May 2022 |
| Docket Number | CIVIL ACTION NO. 21-2184 |
| Citation | 601 F.Supp.3d 31 |
| Parties | Myra ASHMORE v. DOLGENCORP, LLC, d/b/a Dollar General Corporation |
| Court | U.S. District Court — Eastern District of Louisiana |
Louis Adam Gerdes, Jr., Louis A. Gerdes, Jr., Attorney at Law, New Orleans, LA, for Myra Ashmore.
IT IS ORDERED that the plaintiff's motion to remand (Rec. Doc. 11) is DENIED ; and
IT IS FURTHER ORDERED that defendant Renee Quinn is dismissed from this litigation because she was improperly joined.
IT IS FURTHER ORDERED that plaintiff's motion for leave to file a supplemental response (Rec. Doc. 16) is GRANTED , allowing the supplemental memorandum to be filed into the record.
On September 3, 2019, plaintiff filed a petition for damages in the Civil District Court for the Parish of Orleans, alleging gross and wanton negligence on the part of Dolgencorp, LLC ("Dollar General") and its employee, Renee Quinn ("Quinn") (collectively "Defendants"). See Rec. Doc. 1-2. The petition states that on or about September 1, 2018, plaintiff visited the Dollar General store on Morrison Road in New Orleans, Louisiana. Upon entering, she "turned and fell over a pallet." Id. The pallet was allegedly stacked with cases of water, but no cases surrounded the perimeter of the pallet. Id. Because of this, plaintiff allegedly "did not see that the base extended out over a foot from the stack of bottled water." Id. Plaintiff tripped and fell over the extended portion of the pallet, resulting in her seeking medical attention for her injuries sustained in the accident. Id.
On November 24, 2021, defendants removed the case to this Court, alleging diversity jurisdiction as a basis for removal. Rec. Doc. 1. In their notice of removal, defendants argued the section 1332 one-year removal bar should not apply to this case because defendant had "no notice of the suit and was not served, due to no fault of its own." Id. at 2-3. Defendants were eventually served with the lawsuit on June 4, 2021. Id.
On December 9, 2021, plaintiff filed a motion for an extension of time to remand, asserting that pending discovery responses would bear on her ability to remand the matter to state court. Id. On December 10, 2021, defendants filed a timely opposition, arguing that they provided plaintiff with the requested discovery responses on December 3, 2021. Rec. Doc. 9. On December 23, 2021, the court granted plaintiff's motion in part, but only to allow a remand motion based on lack of subject matter jurisdiction. Rec. Doc. 10.
On December 24, 2021, plaintiff filed the instant one-sentence motion to remand, asserting the Court lacks subject matter jurisdiction over this case. Rec. Doc. 11. Plaintiff did not allege the existence of a procedural defect that prevented removal. Id. Six days later, plaintiff filed a motion to supplement her motion to remand. Rec. Doc. 16. In her supplemental memorandum, plaintiff presented more detailed arguments as to how the court lacks subject matter jurisdiction, but she also asserted for the first time a procedural defect in the removal process. Id. Specifically, she alleged that defendants’ removal was untimely. Id.
On January 6, 2022, defendants filed an opposition to plaintiff's motion to remand, arguing that their removal was timely and that there is complete diversity between the parties given that defendant Quinn was improperly joined. Rec. Doc. 18.
Federal courts are courts of limited jurisdiction. Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002). A defendant may remove a state court action to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a) ; Syngenta Crop Prot., Inc. v. Henson , 537 U.S. 28, 34, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002). The removing party bears the burden of demonstrating the existence of federal jurisdiction. See Allen v. R&H Oil & Gas Co. , 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether removal was appropriate, the Court is guided by the principle, that "removal statute[s] should be strictly construed in favor of remand." Manguno , 276 F.3d at 723. Furthermore, remand is appropriate if the Court lacks subject matter jurisdiction, and "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc. , 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp. , 855 F.2d 1160, 1164 (5th Cir. 1988) ).
Title 28, United States Code § 1447 governs the procedure after removal and provides that all procedural defects must be raised in a motion to remand filed within thirty days of removal. 28 U.S.C. § 1447(c). In the Fifth Circuit, a procedural defect is "any defect that does not go to the question of whether the case originally could have been brought in federal district court." Baris v. Sulpicio Lines, Inc. , 932 F.2d 1540, 1544 (5th Cir. 1991) ; see also Williams v. AC Spark Plugs Div. of Gen. Motors Corp. , 985 F.2d 783, 786 (5th Cir. 1993) (). A plaintiff who fails to file a motion to remand based on a procedural defect within thirty days loses the right to challenge the defect. Elec. Man, LLC v. Maillot , No. CV 19-10676, 2020 WL 634901, *4 (E.D. La. Feb. 11, 2020) ; 14C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3739 (4th ed. 2016) (); Mitchell v. Ace Am. Ins. Co., No. CV 15-15 , 2016 WL 3013994 (E.D. La. May 26, 2016) (same). However, unlike remand for procedural defects, a motion to remand based on lack of subject matter jurisdiction may be made raised at any time. Baris v. Sulpicio Lines, Inc. , 932 F.2d 1540, 1544 (5th Cir. 1991) ().
In BEPCO, L.P. v. Santa Fe Minerals, Inc ., plaintiff filed a timely motion to remand asserting two objections, one based on a policy's service of suit clause and one based on lack of subject matter jurisdiction. 675 F.3d 466, 469 (5th Cir. 2012). Approximately one month later, plaintiff asserted another procedural objection that removal was untimely, which the Court found had not been waived based on the assertion of the original objections. Id. In its reasoning, the Fifth Circuit "conclude[d] that [ § 1447(c) ] is unambiguous, and therefore must be enforced according to its terms." Id. at 471. The Court ruled that the central inquiry in the timeliness analysis under § 1447(c) is "whether the remand motion satisfies the 30-day requirement." Id. (emphasis added). In essence, the Court stated that a particular procedural defect could be raised more than 30 days after removal, if the motion to remand itself was filed within the 30-day window provided by § 1447(c). Id.
BEPCO is the law in this Circuit. However, in light of BEPCO ’s facts, it is not clear whether it was discussing the "the timing of the remand motion" which already contains a procedural objection which would operate to preserve the assertion of other subsequent procedural objections, or "the timing of the remand motion" which contains absolutely no procedural objection. It's in light of this uncertainty that we turn to other cases for guidance.
Other courts in this jurisdiction have ruled that failure to raise non-jurisdictional grounds for remand within 30 days of removal constitutes a waiver of those arguments. See Grace v. Myers, No. CV 15-300-JWD-RLB , 2015 WL 4939893, *3 (M.D. La. Aug. 18, 2015) ; Davis v. Ciba-Geigy Corp. , 958 F. Supp. 264 (M.D. La. 1997) ; BEPCO, L.P. v. Santa Fe Mins., Inc. , No. CIV.A. 11-0132, 2011 WL 4499322 (W.D. La. Apr. 25, 2011), report and recommendation adopted , No. CIV.A. 11-0132, 2011 WL 4499359 (W.D. La. Sept. 27, 2011).
For example, in Davis v. Ciba-Geigy Corp ., the removed plaintiff asserted only lack of subject matter jurisdiction as a ground for remand. 958 F. Supp. 264, 266 (M.D. La. 1997). Sometime later, the plaintiff for the first time asserted a procedural defect in support of remand. Id. The Court found "the filing of a timely motion to remand, which does not allege any defect in removal procedure does not preserve plaintiff's right to object to defect[s] in removal procedure after the 30-day period set forth in 28 U.S.C. § 1447(c) has expired." Id.
This case is more akin to Davis , supra . Defendants removed the present action from state court on November 24, 2021. Thus, plaintiff was required to file her motion to remand based on a procedural defect before the thirty-day deadline on December 24, 2021. Plaintiff did not meet that deadline. Instead, on December 24, she filed a motion to remand alleging only lack of subject matter jurisdiction. Six days later, plaintiff filed a motion for leave to file a supplemental memorandum supporting her motion to remand, arguing both procedural defects and lack of subject matter jurisdiction. Like the plaintiff in Davis , Ashmore did not file any procedural defect objections until after the thirty-day period lapsed. Because plaintiff failed to object to a defect in the removal procedure within thirty days of the filing of the notice of removal, the Court finds that plaintiff has waived her...
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