United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
BES Design Build, LLC (“BES”), is a limited
liability company that conducts business in Baldwin County,
Alabama. (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.).
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.).
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).
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).
STANDARD OF REVIEW
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).
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)).
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).