Cameron v. Teeberry Logistics, LLC

• Decision Date: 30 January 2013
• Docket Number: Civil Action No. 3:12–cv–181–TCB.
• Citation: 920 F.Supp.2d 1309
• Parties: Cheryl CAMERON, Plaintiff, v. TEEBERRY LOGISTICS, LLC and James Parham, Defendants.
• Court: U.S. District Court — Northern District of Georgia

920 F.Supp.2d 1309

Cheryl CAMERON, Plaintiff,

v.TEEBERRY LOGISTICS, LLC and James Parham, Defendants.

Civil Action No. 3:12–cv–181–TCB.

United States District Court,

N.D. Georgia,

Newnan Division.

Jan. 30, 2013.

Michael Anthony Young, Law Office of Michael Young, Atlanta, GA, for Plaintiff.

Andrew J. King, John Bailie Austin, Austin & Sparks, P.C., Atlanta, GA, for Defendants.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

This is an action for personal injuries arising from an automobile accident. Defendants Teeberry Logistics, LLC and James Parham removed this case to this Court from the State Court of Troup County, Georgia. The matter is before the Court on Plaintiff Cheryl Cameron's motion to remand [7].

I. Background

On August 24, 2011, Cameron was injured in a vehicular collision with a tractor-trailer driven by Parham. According to Cameron, Parham negligently failed to yield the right-of-way and drove into the path of her vehicle, giving Cameron no time to stop or avoid the collision.

On November 9, 2011, Cameron filed this action in state court, asserting a negligence claim against Parham and against Parham's employer, Teeberry Logistics, under the doctrine of respondeat superior. Cameron's two-page complaint consists of only six paragraphs. Paragraph 4 avers, “The amount in issue is less than $50,000.00 and does not come close to exceeding $75,000.00 and this claim is not subject to removal to the United States District Court.” In her request for relief she asks that the Court “grant Plaintiff judgment against the defendants in an amount sufficient to compensate [her] for past, present and future pain, suffering, impairment, lost wages and medical expenses.”

The parties commenced discovery in state court. On May 31, 2012, Cameron served a third supplementation to Defendants' discovery requests in which she provided Defendants with work excuse disability slips from November 26, 2011 through the date of the supplementation and attached an inventory of medical expenses totaling $62,432.45. Subsequently, she sent Defendants a July 9, 2012 physician consult in which her doctor recommended and scheduled a back surgery for her; the consult did not include any estimate of the cost of the surgery. On August 9, 2012, Cameron sent Defendants a fifth supplementation to their discovery requests,this time stating that her medical expenses were $91,413.75.

At no point did Cameron amend her complaint to aver that the amount in controversy had changed. However, on November 13, 2012, Cameron's counsel sent Defendants a time-limited demand letter seeking to settle the case for $575,000. The letter explained, “With close to $150,000.00 in special damages; 12 epidural injections; a discogram; and a 2–part surgery, we believe the jury will evaluate this case very highly.” The parties mediated this case on December 11, 2012. At mediation, Cameron never presented a demand below $75,000. The mediation was unsuccessful.

On December 12, 2012, the day after the failed mediation, Defendants removed this action to this Court based on diversity jurisdiction. In their notice of removal, Defendants assert that the parties are completely diverse because Cameron is a Georgia citizen, Parham is a South Carolina citizen, and Teeberry Logistics is incorporated and has its principal place of business in North Carolina. Defendants further aver that contrary to Cameron's complaint, her time-limited demand letter makes clear that the $75,000 minimum amount-in-controversy requirement is satisfied. Cameron no longer denies that the amount-in-controversy requirement is met, and in fact, has filed documents reflecting that the amount in controversy is now well over $75,000. However, Cameron maintains that Defendants cannot remove the case because they waited too late to do so.

II. DiscussionA. Legal Standard

The party seeking removal must present facts establishing its right to remove and has the burden of proving that federal jurisdiction exists by a preponderance of the evidence. See, e.g., Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir.2005); Buice v. Buford Broad., Inc., 553 F.Supp. 388, 390 (N.D.Ga.1983). When the defendant fails to do so, the case must be remanded. Williams v. Best Buy Co., 269 F.3d 1316, 1321 (11th Cir.2001).

Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). A district court has original jurisdiction over cases in which the parties are of diverse citizenship and “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a).

B. Analysis

Cameron concedes that the parties are diverse and that the amount in controversy is met; thus, she does not challenge the sufficiency of removal pursuant to 28 U.S.C. § 1332. Instead, she argues that remand is required because Defendants' removal is untimely under 28 U.S.C. § 1446.

Pursuant to 28 U.S.C. § 1446(b)(3), a defendant may remove an action that was not initially removable if the action later becomes removable. That statute provides,

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.

A defendant seeking to remove an action based on diversity jurisdiction pursuant to § 1446(b)(3) must actually satisfy two time requirements.

First, the defendant must file a notice of removal within thirty days of when he first ascertains that the action is removable. Id. As the statute indicates, a defendant may be put on notice of removal by a pleading, motion, order or “other paper.” Id. To provide notice of removability, the “other paper” “must contain an unambiguous statement that clearly establishes federal jurisdiction.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1215 n. 63 (11th Cir.2007) (citing Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir.2002); Huffman v. Saul Holdings, LP, 194 F.3d 1072, 1078 (10th Cir.1999)).

Second, to remove an action that was not initially removable but later becomes removable, the defendant must file his notice of removal no “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c). To determine when an action “commences” for purposes of § 1446(c), a court looks to the law of the forum state in which the action originated. 28 U.S.C. § 1332; Easley v. Pettibone Mich. Corp., 990 F.2d 905, 908 (6th Cir.1993). In Georgia, an action is commenced when the complaint is filed. O.C.G.A. § 9–11–13; Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629, 632 (1977).

Thus, for removal to be proper, Defendants must have removed the action (1) within thirty days of receiving notice that the case was removable (§ 1446(b)(3)), and (2) within one year of the date Cameron filed her suit, unless they can show that Cameron acted in bad faith to prevent removal (§ 1446(c)).

The Court first turns to whether Defendants removed within thirty days of receiving notice that the case is removable. According to Cameron, throughout discovery, she sent Defendants supplementations to their discovery requests that updated them as to her ever-growing medical expenses. She contends that those supplementations made it clear that the case was removable because the amount in controversy easily exceeded $75,000. In support of her argument, Cameron points to three specific supplemental discovery responses: (1) her May 31, 2012 supplementation indicating that her medical expenses were $62,432.45 and that she had been out of work for half a year; (2) a July 9, 2012 consultation statement from a physician in which he recommended and scheduled surgery for Cameron; and (3) her August 9, 2012 supplementation stating that her medical expenses were $91,413.75.¹

Defendants respond that these documents did not notify them of removability because (1) Cameron failed to attach copies of her medical bills to the supplemental responses; (2) the amount in controversy in a personal injury case is not based solely on the amount of medical expenses; (3) Cameron had been in another serious accident in March 2008 for which she was still receiving treatment just weeks before this accident, so there was an issue with causation regarding the medical expenses; and (4) despite the medical expenses, Defendants continued to reasonably believe that the case was not removable because Cameron never amended her complaint, which expressly declared that the case was worth less than $50,000 and “does not come close” to being worth $75,000.

According to the Eleventh Circuit's decision in Lowery, to constitute notice of removability pursuant to § 1446(b)(3), Cameron must have provided Defendants with “other paper” “contain[ing] an unambiguous statement that clearly establishes federal jurisdiction.” 483 F.3d at 1215 n. 63. As an initial matter, Cameron's supplementations to Defendants' discovery requests are within the category of documents that the Eleventh Circuit has identified as “other paper” within § 1446(b). Id. at 1213 n. 62 (“[Other paper] include[s]: responses to requests for admissions, settlements offers, interrogatory responses, deposition testimony, demand letters, and email estimating damages.”) (citations omitted).

Further, contrary to Defendants' argument, Cameron did not need to attach actual medical bills in order to provide them with notice of removability. Courts have found that plaintiffs may notify defendants that their medical expenses exceed $75,000 in a variety of ways. See, e.g., Adams v. Bellsouth Telecomms., LLC, No. 12–60–GFVT, 2013 WL 97733, at *3–4 (E.D.Ky. Jan. 8, 2013) (letter from plaintiff's counsel...