Margaret WILLIAMS, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.
Civil Action No. 1:07cv1108-MHT (WO).
United States District Court, M.D. Alabama, Southern Division.
February 15, 2008.Frank "Jerome Tapley, Cory, Watson, Crowder & DeGaris, Birmingham, AL, Rachael Gilmer, William Jemison Mims, Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor PA, Pensacola, FL, Larry Edwin Givens, Cochran Cherry Givens & Smith, PC, Dothan, AL, for Plaintiff.
Chad Christopher Marchand, Jennifer Allen Doughty, Wilbur Pemble DeLashmet, *1240 DeLashmet & Marchand, P.C., Mobile, AL, for Defendant.
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
In this slip-and-fall lawsuit, plaintiff Margaret Williams charges defendant Wal-Mart Stores, Inc. with negligence and wantonness. Williams removed this lawsuit from state court to federal court based on diversity-of-citizenship jurisdiction. 28 U.S.C. §§ 1332, 1441. This lawsuit is now before the court on Williams's motion to remand. Williams contends that removal is improper because Wal-Mart did not file a timely notice of removal pursuant to 28 U.S.C. § 1446(b). For the reasons that follow, the court concludes that Williams's motion should be denied.
I. BACKGROUND
Because whether the parties acted timely is at issue, the relevant events are listed in chronological order as follows:
March 11, 2007: Williams was injured when she slipped and fell near the exit of a Wal-Mart Store in Geneva, Alabama.
March 12: Wal-Mart was informed that Williams's fall resulted in hospitalization and a badly broken leg.
August 16: Williams sued Wal-Mart in state court for negligence and wantonness.
September 11: Wal-Mart was served with Williams's complaint and a summons.
October 10: Wal-Mart answered Williams's complaint in state court.
November 21: Wal-Mart received Williams's responses to its requests for admissions in which she denied that the amount in controversy, did not exceed $ 75,000.00 exclusive of interest and costs.
December 20: Wal-Mart removed this case to federal court, asserting that there is diversity jurisdiction because the parties are from different States and because it had learned for the first time, with Williams's November 21 answers to requests for admissions, that the jurisdictional amount of $ 75,000.00 was satisfied.
January 8, 2008: This court issued an order for Wal-Mart to amend the December 20 notice of removal because the court could not tell from it whether the parties had, in fact, diverse citizenship.[1]
*1241 January 11: Wal-Mart amended its notice of removal to cure the defect found by the court in its January 3 order.
January 25: Williams moved to remand this lawsuit back to state court. Williams argued that the notice of removal was not timely.
February 8: Wal-Mart responded that not only was it removal notice timely, but that Williams's remand motion was itself not timely.
II. GENERAL REMOVAL-AND-REMAND STANDARDS
A civil action brought in state court may be removed by a defendant to federal court if the action could have been brought in federal court in the first instance. 28 U.S.C. § 1441(a). The party seeking removal has, under 28 U.S.C. § 1446, the burden of establishing jurisdiction. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). Typically, removal is premised either on federal-question jurisdiction or diversity-of-citizenship jurisdiction. Federal-question jurisdiction exists when the civil action arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity-of-citizenship jurisdiction exist when the amount in controversy exceeds $ 75,000, exclusive of interest and costs, and the plaintiff and the defendant are citizens of different States. 28 U.S.C. § 1332(a).
Generally, the notice of removal must "be filed within thirty days after the receipt by the defendant . . . of a copy of the intial pleading setting forth the claim for relief upon which Such action or proceeding is based:" 28 U.S.C. § 1446(b).[2] If a case cannot be determined to be removable from the face of the initial complaint, "a notice of removal may be filed, within thirty days after receipt by the defendant . . . 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." Id.
After removal, a party may move to remand to state court on the basis of any defect in the removal, including lack of subject-matter jurisdiction. 28 U.S.C. § 1447(c).[3] A motion based on a removal defect must be made within 30 days after the filing of the notice of removal. Id. However, "[i]f at any time before final judgment it appears that the `district court *1242 lacks subject matter jurisdiction, the case shall be remanded." Id.
III. DISCUSSION
A. Timeliness of Motion to Remand
The first question the court will address is whether Williams's remand motion, in which she contends that Wal-Mart's original removal notice is untimely, is itself untimely under § 1447(c) because it was filed more than 30 days after' the original notice of removal.
As shown above, Wal-Mart filed its original notice of removal on December 20, 2007, and filed an amended notice on January 11, 2008; Williams then filed her motion to remand on January 25, 2008. If 28 U.S.C. § 1447(c)'s 30-day time period for Ming a remand motion is measured from the December 20 Ming of Wal-Mart's original removal notice, then Williams's January 25 remand motion would be untimely because it would have been filed 36 days after the Ming of the original removal notice; however, if the 30-day period is measured from the January 11 filing of Wal-Mart's amended removal notice, then Williams's January 25 remand motion would be timely because it would have been filed 14 days after the filing of the amended removal notice.
Section 1447(c)'s language is explicit that, "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c). Original and amended notices of removal constitute removal notices; indeed, Wal-Mart labeled both as such here. Therefore, with the Ming of an amended removal notice, the 30-day period for filing a remand motion should, in general, begin again.[4] (Of course, if a removing defendant wanted the 30-day clock for the filing of a remand motion not to restart, the defendant should make sure that its original notice of removal is adequate and thus there would be no need to file an amended one.)
Here, both Wal-Mart's original and amended notices of removal constituted removal notices. The notices were, however, filed on different days. Because the notices were filed on different days, each had a different date for the beginning of the 30-day period for the filing of a remand motion, with the result that, with Wal-Mart's filing of its amended removal notice, Williams had another 30-day time period to file a remand motion. Because Williams's motion to remand was filed within 14 days of Wal-Mart's amended notice of removal, the motion was timely.[5]
B. Timeliness of Notice of Removal
Moreover, regardless as to whether Williams's motion to remand was timely, the result would be the same, for the motion lacks merit.
*1243 As stated, § 1446(b) addresses whew 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.' [28 U.S.C.] § 1446(b)." Lowery v. Alabama Power Co., 483 F.3d 1184, 1212 (11th Cir.2007). "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)." Id. at 1212-13.
Under the first type of case, "a case may be removed on the face of the complaint if the plaintiff has alleged facts sufficient to establish the jurisdictional requirements." Id. at 1213 n. 63. Under the second type, "a case becomes removable when three conditions are present: there must be (1) `an amended pleading, motion, order or other paper,' which (2) the defendant must have received from the plaintiff (or from the court, if the document is an order), and from which (3) the defendant can `first ascertain' that federal jurisdiction exists. § 1446(b)." Id. Under either type of case, "the documents received by the defendant must contain an unambiguous statement that clearly establishes federal jurisdiction." Id.
With her motion to remand, Williams contends that Wal-Mart's notice of removal failed to meet § 1446(b)'s 30-day requirement because the notice was not filed until December 20, 2007, over three months after the date, September 11, 2007, that Wal-Mart, was served with the statecourt summons and complaint. More specifically, Williams argues that this case falls within the first type of § 1446(b) case because Wal-Mart could have ascertained that the case was removable on the basis of the allegations in the initial complaint. It is well-established that, "in the removal context where damages are unspecified, the removing party bears the burden of establishing the jurisdictional amount by a preponderance of the evidence." Lowery, 483 F.3d at 1208. This burden can be met on the basis of the complaint only if it is "facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement." Williams, 269 F.3d at 1319. Indeed, the Eleventh Circuit Court of Appeals has cautioned that, because, "[u]nlike the typical plaintiff who originally brings a diversity action in federal court, the removing defendant generally will have no direct knowledge of the value of the plaintiffs claims, . . . it is highly questionable whether a defendant could ever file a notice of removal on diversity grounds . . . where the defendant . . . has only bare pleadings containing unspecified damages on which to base its notice." Lowery, 483 F.3d at 1213 n. 63.
Williams's complaint contained only unspecified damages; it stated only that she was damaged and injured by Wal-Mart's conduct, and it then listed her injuries as including a comminuted fracture in her leg and other injuries to the femur, a fracture to her right hip, and injuries to her right shoulder that would require surgery.[6] In *1244 spite of the relatively detailed listing of her injuries, the amount in controversy is not facially apparent from the complaint.
Under these circumstances, with only unspecified damages in Williams's complaint, Wal-Mart had no basis to remove Williams's lawsuit based solely on her complaint. See, e.g., Lowery, 483 F.3d at 1219 (declining removal on the basis of the complaint because the court found "no unambiguous statement on the face of the amended complaint that would be sufficient to establish that plaintiffs' claims potentially exceeded" the jurisdictional minimum); Bankhead v. American Suzuki, 529 F.Supp.2d 1329, ___, 2008 WL 96095, at *2 (M.D.Ala.2008) (Thompson, J.) ("Bankhead has alleged four common-law claims, but his complaint is nowhere near specific enough as to the duration, extent, severity, or kinds of harms alleged such that this court could determine by a preponderance of the evidence the value of, such claims, were he to prevail. Therefore, the amount in controversy is not facially apparent from the complaint"); Channell v. Nutrition Distribution, LLC, 2008 WL 220934, at *1 (M.D.Ala. Jan. 25, 2008) (Thompson, J.) (in remanding case removed based on diversity jurisdiction, the court "emphasized that all [it] has before it are [plaintiff]'s pleadings containing unspecified damages").
Williams also contends that Wal-Mart could have ascertained that the case was removable on March 12, 2007, prior to the filing of the lawsuit in state court, when the company was informed that she had been hospitalized because of a broken leg that was "bad." However, Wal-Mart's general knowledge of Williams's hospitalization and the fact that her broken leg was "bad" is even less enlightening than her complaint as to whether her injuries potentially exceeded the jurisdictional Minimum. Wal-Mart could not have ascertained from this mere evidence of
Williams's hospitalization and her broken leg that the amount in controversy exceeded $ 75,000.
Instead, the court agrees with Wal-Mart that its December 20, 2007, removal notice meets § 1446(b) 30-day requirement because it did not learn that the amount in controversy was greater than $ 75,000 until it received responses to its requests for admissions on November 21, 2007. Thus, according to Wal-Mart, its removal notice falls within § 1446(b)'s second type of case.
As stated, under the second type, "a case becomes removable when three conditions are present: there must be (1) `an amended pleading, motion, order or other paper,' which (2) the defendant must have received from the plaintiff (or from the court, if the document is an order), and from which (3) the defendant can `first ascertain' that federal jurisdiction exists. § 1446(b)." Lowery, 483 F.3d at 1213 n. 63 (emphasis added). "[T]he documents received by the defendant must contain an unambiguous statement that clearly establishes federal jurisdiction." Id. Here, the admission responses constituted "other paper" within the meaning of § 1446(b), see id. at 1212 n. 62 ("Courts have not articulated a single test for identifying "other paper," but numerous types of documents have been held to qualify. They include: responses to request for admissions."); the responses were received from Williams; and Wal-Mart's receipt of the responses was the `first time' it had `unambiguous' evidence that the jurisdictional amount was met.
Because the date Wal-Mart removed this case to federal court (December 20, 2007) is within 30 days of the date it received the admission responses and ascertained for the first time the amount in controversy (November 21, 2007), its notice *1245 of removal was timely under § 1446(b).
* * *
Accordingly, it is ORDERED that plaintiff Margaret William's motion to remand (doc. no. 13) is denied.
NOTES
[1] In its January 3 order, the court stated that the December 20 notice of removal was inadequate for two reasons. First, the court explained that:
"The notice appears to give the `residence' rather than the `citizenship' of plaintiff. An allegation that a.party is a `resident' of, that is, has her `principal address' in, a State is not sufficient to establish that a party is a `citizen' of that State. Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 534, 30 L.Ed.2d 547 (1971)."
Second, the court stated that:
"The notice of removal is also insufficient because it does not indicate the citizenship of defendant; indeed, it is unclear whether the defendant is a corporation or a partnership. If the entity is a corporation, then the notice must allege the citizenship of both the State of incorporation and where the corporation has its principal place of business. 28 U.S.C.A. § 1332(c)(2); American Motorists Insur. Co. v. American Employers' Insur. Co., 600 F.2d 15, 16 & n. 1 (5th Cir.1979) (per curiam). If the entity is a partnership, the notice must indicate the citizenship of the individual partners, both general and limited. Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990)."
Order entered on January 3, 2007 (Doc. No. 3). The court then gave Wal-Mart until January 22, 2008, to amend and cure the removal notice pursuant to 28 U.S.C. § 1653, which provides that, "Defective allegations of jurisdiction may be amended; upon terms, in the trial or appellate courts."
[2] Section 1446(b) provides, in part, that:
"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. . . . "
28 U.S.C. § 1446(b).
[3] Section 1447(c) provides that:
"A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal, A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case."
28 U.S.C. § 1447(c)
[4] The court states that this legal proposition applies `in general' because the court has found almost no cases that directly address this issue, and thus the court has not had the opportunity to ponder all the circumstances, or even many other circumstances, that might arise where the original and amended removal notices were filed on separate days.
[5] The court need not address whether Wal-Mart's original and amended removal notices are "pleadings" and whether a civil rule could extend a statutory time period so that Fed.R.Civ.P. 15 ("Amended and Supplemental Pleadings") could apply to § 1447(c)'s 30-day time limitation. This rule provides, in part, that:,
"Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later."
Fed.R.Civ.P. 15(a)(3). However, even if this rule were to apply, Williams's remand motion would meet its requirements and thus would still be timely.
[6] Williams's complaint stated, in part:
"(a) Plaintiff was caused to suffer injuries to her right knee, a comminuted fracture involving the proximal shafts of her right femur with angulation, displacement and fragmentation, and a fracture to her right hip at the femoral neck;,
"(b) Plaintiff was caused to suffer injuries to her right shoulder, such injuries will require surgical intervention;
"(c) Plaintiff was caused and will be caused in the future to suffer physical pain, permanent injury and mental anguish as a result of the injuries she has sustained; and
"(d) Plaintiff was caused to incur medical expenses in and about an effort to cure and treat her injuries."
Complaint (Doc. No. 1), at 4, ¶ 9.