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BES Design Build, LLC v. Harrell Design Group, P.C.

United States District Court, S.D. Alabama, Southern Division

June 29, 2018




         This matter is before the Court on Plaintiff BES Design Build, LLC's Motion to Remand. (Doc. 13). The motion, which has been fully briefed, has been referred to the undersigned Magistrate Judge for entry of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon consideration of the parties' briefs, the undersigned RECOMMENDS that Plaintiff's Motion to Remand be DENIED.


         Plaintiff BES Design Build, LLC (“BES”), is a limited liability company that conducts business in Baldwin County, Alabama.[1] (Docs. 1 at 3; 1-2 at 2). BES was awarded a contract with the Department of Veterans Affairs. The contract provided that BES would serve as the General Contractor for the renovation of the 3B Stepdown Clinic at the Fayetteville Veterans Health Care of the Ozarks in Fayetteville, Arkansas. (Doc. 1-2 at 2). Harrell Design Group, PC (“Harrell”), is a foreign professional corporation incorporated in North Carolina, with its principal place of business in Charlotte, North Carolina. (Docs. 1 at 3; 1-2 at 2). Harrell was also awarded a contract with the Department of Veterans Affairs. (Doc. 1-2 at 2). Under the contract, Harrell was to provide architectural and design services on the project in Fayetteville, Arkansas (“the Project”), and BES would, in turn, use the designs and specifications provided by Harrell to complete the Project. (Id.).

         BES filed the instant action against Harrell on October 17, 2017, in the Circuit Court of Baldwin County, Alabama. (Doc. 1-2). BES alleges breach of contract, tortious interference with a business relationship, negligence/wantonness, and misrepresentation. (Doc. 1-2 at 1-5). According to BES, it has “experienced, and is still experiencing, numerous delays due to the errors and omissions of Harrell with regard to its work on the Project done pursuant to their contract work with the Government.” (Id. at 3). BES maintains that some of Harrell's errors and omissions include, but are not limited to: an omission of asbestos documentation; errors and omissions of the sanitary sewer drawings and documentation for the second floor of the structure; errors and omissions due to a deficient nurse call-station specification; and errors and omissions due to poor due diligence. (Id.). BES further avers that the alleged omissions and errors by Harrell have delayed the project by 356 days and that BES has sustained damages in the amount of $334, 341.22 as a result. (Id.).

         On November 22, 2017, Harrell removed this action from the Circuit Court of Baldwin County to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (Doc. 1 at 1-2, 5). In its Notice of Removal, Harrell asserts that complete diversity of citizenship exists between it and BES, and that the amount in controversy requirement is satisfied because the damages alleged exceed $75, 000. Thus, the requirements for this Court to exercise federal diversity jurisdiction are fulfilled. (Id. at 2-3).

         In BES' Motion to Remand, it does not dispute that the parties are diverse and that the amount in controversy has been satisfied. Instead, BES contends that Harrell's removal of this action was untimely because the removal occurred more than thirty (30) days after Harrell was served with the summons and complaint. (Doc. 13 at 1). According to BES, Harrell was served on October 21, 2017; thus, Harrell had to remove this action by November 20, 2017, at the latest. (Id.). BES bases its service date on tracking information provided by the United States Postal Service's (“USPS”) website. (Id. at 2-3; Doc. 13-3). The docket reflects that the summons and complaint were issued by the Clerk of the Baldwin County Circuit Court via certified mail using USPS. (Docs. 13 at 2; 13-2; 13-3). The USPS website reflects that the package was initially processed at a USPS facility in Bay Minette, Alabama, on October 18, 2017. (Doc. 13-3). The final tracking entry reflects that, on October 21, 2017, the summons and complaint were “In transit to Destination” and “On its way to Charlotte, NC 28227”. (Id.). BES asserts that this establishes that Harrell was served on October 21, 2017, and because Harrell did not remove this action until November 22, 2017, the removal was untimely, such that this Court is without jurisdiction. (Docs. 13 at 1; 1 at 5). Harrell, in turn, argues that the thirty-day removal period began to run on October 25, 2017; thus, this action was timely removed on November 22, 2017. (Doc. 16 at 1-2). Harrell bases its service date on a date stamp affixed to its copy of the summons and complaint, which indicates that the documents were received on October 25, 2017. (Doc. 1-3 at 1). According to Harrell, it is the standard practice at its North Carolina offices to stamp mail with the date stamp on the date on which the mail is received. (Docs. 16 at 3; 16-2 at 2).


         A removing defendant has the burden of proving proper federal jurisdiction. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008); Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (“In removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.”) (citation omitted); McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002); Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all doubts resolved in favor of remand. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Furthermore, “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1092 (11th Cir. 2010) (internal quotes omitted).

         Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332, the removing defendant has the burden of demonstrating that there is (1) complete diversity of citizenship and (2) an amount in controversy greater than $75, 000. See 28 U.S.C. § 1332(a). “Eleventh Circuit precedent permits district courts to make reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that a case is removable.” SUA Ins. Co. v. Classic Home Builders, LLC, 751 F.Supp.2d 1245, 1252 (S.D. Ala. 2010) (quoting Roe, 613 F.3d at 1062). Courts may use judicial experience and common sense to determine whether the case stated in the complaint meets the requirements for federal jurisdiction. Id. Reliance on “speculation” is “impermissible.” Id. (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010)).

         Additionally, 28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within 30 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 30 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.

28 U.S.C. § 1446(b).

         III. ...

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