Grooms v. Saint
| Decision Date | 03 December 2010 |
| Docket Number | CIVIL ACTION NO. 1:10CV175-A-D |
| Parties | WESLEY K. GROOMS PLAINTIFF v. CLYDE v. SAINT, KEYSTONE AUTOMOTIVE INDUSTRIES, INC., DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
Before the Court is Plaintiff's Motion to Remand [10] and Defendants' Motion for Leave to File Surrebuttal [16]. After reviewing the motions, responses, rules, and authorities, the Court finds as follows:
I. BACKGROUND
On February 5, 2010, Plaintiff, Wesley Grooms, sued Defendants in the Circuit Court of Prentiss County, Mississippi, alleging negligence and negligence per se after Grooms was injured when struck by a vehicle owned by Keystone Automotive Industries and driven by Keystone employee, Clyde Saint, allegedly during the course and scope of Saint's employment. Defendants filed a notice of removal on July 15, 2010, claiming diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff subsequently filed a Motion to Remand on July 19, 2010. Plaintiff does not contest the fact that the requirements of diversity jurisdiction, i.e., complete diversity of citizenship and an amount in controversy in excess of $75,000, appear to be met. Rather, Plaintiff contends that the case should be remanded on the basis that Defendants' removal was untimely under 28 U.S.C. § 1446(b).
II. REMOVAL AND REMAND STANDARD
Federal courts are courts of limited jurisdiction. Epps v. Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982). The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the districts 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." 28 U.S.C. § 1441(a). This Court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. This Court also has original jurisdiction when "the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C. § 1332(a); Addo v. Globe Life and Accident Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000).
Once a motion to remand is filed, the burden falls on the party seeking to maintain this Court's removal jurisdiction to show that the requirements for removal have been met. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). After removal of a case, the plaintiff may move for remand, and "[i]f it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The Fifth Circuit has held that the removal statutes are to be construed "strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 85 L.Ed. 1214 (1941).
Section 1446(a) of the removal statutes answers the question of how removal is accomplished, stating that a defendant may remove any "civil action" by filing a notice of removal, signed pursuant to the good faith requirements of Federal Rule of Civil Procedure 11, which contains "a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). Section 1446(b) then answers the question of when an action is removable, setting forth the preconditions for removal in two types of cases: (1) those removable on the basis of an initial pleading; and (2) those that later become removable on the basis of "a copy of an amended pleading, motion, order or other paper." § 1446(b). Regardless of the type of case, a defendant must remove within thirty days of receiving the document that provides the basis for removal. § 1446(b).
III. ANALYSIS AND DISCUSSION
On July 29, 2010, Defendants' filed a Motion for leave to file a surrebuttal brief in opposition to Plaintiff's remand motion. Defendants' claim that this surrebuttal is made in good faith, not for the purpose of delay, and necessary because Plaintiff made new arguments for the first time in his rebuttal memorandum in support of remand. The Court finds that Defendants' motion to file a surrebuttal brief is well taken and will not prejudice the Plaintiff. As such, the motion shall be granted, and the surrebuttal brief, which Defendants have already filed, will be considered as the Court decides the instant motion.
Plaintiff argues that Defendants' notice of removal was untimely under 28 U.S.C. § 1446(b). Section 1446(b) provides,
(b) The notice of removal of a civil action or proceeding shall be filed within thirty 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 thirty 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 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Plaintiff makes several arguments as to why Defendants' notice of removal is untimely. Specifically, Plaintiff contends that (1) Defendants should have ascertained that Plaintiff's claims were removable from Plaintiff's pre-suit compromise package and from the original complaint; (2) Plaintiff's compromise package and the numerous letters sent between the parties constitute "other paper" so as to trigger the thirty-day period for removal; and (3) Defendants have waived their right to remove by defending this action in state court. A. Removal Based on the Initial Pleading
In Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992), the Fifth Circuit held that the thirty-day removal period under the first paragraph of § 1446(b) is triggered "only when 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." The Fifth Circuit added that it intended to adopt a "bright line rule requiring the plaintiff, if he wishes the thirty-day time period to run from the defendant's receipt of the initial pleading, to place in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount." Id. The court intended the "bright line" rule to obviate the need for protective removals, and to relieve the district courts from having to expend limited resources attempting to discern what defendants knew or should have known had they exercised due diligence. See id.
Ten years after Chapman, the Fifth Circuit, in Bosky v. Kroger Texas, LP, 288 F.3d 208, 210 (5th Cir. 2002), echoed Chapman's "bright line" rule, but then went on to comment that the court had "since [Chapman] held that specific damage estimates that are less than the minimum jurisdictional amount, when combined with other unspecified damage claims, can provide sufficient notice that an action is removable so as to trigger the time limit for filing a notice of removal." Further, the Bosky court contrasted the "key language" in the first and second paragraphs of Section 1446(b) as follows:
"Setting forth," the key language of the first paragraph, encompasses a broader range of information that can trigger a time limit based on notice than would "ascertained," the pivotal term in the second paragraph.... The latter, in contrast to the former, seems to require a greater level of certainty or that the facts supporting removability be stated unequivocally.
Id. at 211. In this case, Plaintiff appears to argue that the Fifth Circuit's decision in Chapman is either overruled or abrogated in light of Bosky. As such, the Court discusses whether Chapman is still controlling. At the outset, the Court acknowledges that Bosky's expansive language regarding the first paragraph of § 1446(b) initially appears difficult to reconcile with Chapman's rule that the initial pleading must affirmatively reveal on its face that damages are in excess of $75,000. See Capturion Network, LLC v. Daktronics, Inc., 2009 WL 1515026, at *6 (S.D. Miss. May 29, 2009) (). However, the Court finds that a careful reading of Bosky and Chapman together reveals that Chapman's rule still controls.
The two cases cited by Bosky, Marcel v. Pool Co., 5 F.3d 81, 82-85 (5th Cir. 1993) and De Aguilar v. Boeing Co., 47 F.3d 1404, 1408-12 (5th Cir. 1995), to support the seeming withdrawal from Chapman's bright line rule focused on whether the amount in controversy satisfied the jurisdictional requirement, not the timeliness of removal. Bosky itself even acknowledged that removal under the first paragraph of Section 1446(b) was not at issue in that case. Bosky, 288 F.3d at 209-10. Further, Bosky did not expressly overrule Chapman or give any indication that it intended to do so; instead, the Bosky court quoted and embraced Chapman's language that it is a "better policy" to require a "specific allegation" in order to trigger the thirty-day removal period from the initial pleading. Id. at 208. Moreover, as noted by the court in Capturion Network, "even if Bosky had intended to overrule or abrogate Chapman, it is not clear that the three-judge panel had the...
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