Hunter v. D & D Transport, Inc.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         The Motion to Remand filed by Plaintiffs (Doc. 3) has been referred for a report and recommendation, under 28 U.S.C. § 636(b)(1)(B)(3) and General Local Rule 72(a)(2)(S). Diversity jurisdiction has been invoked in this Court under 28 U.S.C. § 1332. After consideration of the record, briefs of counsel and oral arguments with exhibits presented on May 2, 2019, it is recommended that Plaintiffs' Motion be granted and that this action be remanded to the Mobile County Circuit Court for all further proceedings.

         I. Background.

         This case arises out of a motor vehicle collision in which Defendant Herrington was allegedly driving a semi-truck (commonly known as an 18-wheeler) who ran a red light colliding with the vehicle driven by Plaintiff, Roosevelt Hunter and occupied by his passenger, Almeda Robinson. Roosevelt Hunter required and underwent lumbar surgery stemming from this collision.

         Plaintiffs filed this action in the Circuit Court of Mobile County, Alabama on December 5, 2018 and discovery was propounded by Plaintiffs along with the Complaint as authorized under the Alabama Rules of Civil Procedure.

         Defendants, D & D Transport, Inc., and Dan Lockwood Herrington were served with the Complaint, along with Plaintiff's First Set of Interrogatories and Production of Documents, on December 14, 2018. The thirty-day period for removal after service on both Defendants expired on January 13, 2019 without the action being removed from state court.

         Pursuant to Defendant's request, on March 4, 2019, Plaintiffs sent a supported demand package that contained settlement letters, along with attachments of medical records and bills, ^[1] with the exception of one bill from AL Anesthesiology, LLC, for $1, 695.75. (Docs. 6-1 & 6-2) However, the vendor and the amount of said bill were clearly stated in the settlement demand letter. (Doc. 6-1 at 1).

         The settlement package was sent in two parts, via email, on March 4, 2019, at 3:49 p.m., and 3:54 p.m. and by mail, on March 6, 2019. On March 4, 2019, at 4:30 p.m., Defense counsel confirmed, via email, that she was in receipt of the settlement letters and attachments.^[2] Defense counsel also noted in her email that she was expecting to receive, by mail, a CD with the attachments to “make sure we have everything.” (Exhibit A at 3). That CD arrived in the mail on March 6, 2019. (Defendant's Oral Argument Exhibit A at 1).^[3] The actual exhibits received by Defendant after March 4, 2019, other than the anesthesiology bill that was supplied on March 11, 2019, could not be ascertained from the record. Although Defendant was clearly in receipt of a portion of the information packages on March 4, 2019 (Doc. 5 at 7), counsel was unable to identify the specific additional information that was not received until March 6, 2019.

         Defendants removed this action on April 5, 2019, more than thirty days after March 4, 2019 but exactly thirty days after March 6, 2019.

         II. Discussion.

         The Court's jurisdiction in this matter is premised on diversity of the parties and an amount in controversy exceeding $75, 000. 28 U.S.C. §§ 1332, 1441, and 1446. (Doc. 1). Diversity of the parties is not challenged by the Plaintiffs. Additionally, there is no dispute that the totality of the information produced by the Plaintiffs no later than March 6, 2019 would establish a jurisdictional amount in excess of $75, 000. The issue in this motion is whether Plaintiffs' production of information on March 4, 2019 was sufficient to trigger the running of the thirty-day period for removal.

         28 U.S.C. §1446(b) sets forth the preconditions for removal in two types of cases: (1) cases removable on the basis of an initial pleading; and (2) cases that later become removable on the basis of “a copy of an amended pleading, motion, order or other paper.” This case is of the second variety, often referred to as a second paragraph removal. Under that provision, 28 U.S.C. § 1446(b)(3), a notice of removal is timely if filed within 30 days of receiving 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.”

         In removing cases of this type, the defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy more likely than not exceeds the jurisdictional requirement. Ford v. Jolly Shipping, Inc., 2017 LEXIS 153187, *4-5 (S.D. Ala. Sept. 19, 2017). Thus, in order to remove this case, Defendants needed such sufficient evidence beyond the generally listed damages in Plaintiffs' initial pleading in order to meet their burden of proof to successfully remove and establish the existence of federal jurisdiction. Critically important to this motion is a determination of when the information necessary for the Defendants to ascertain the value of Plaintiffs' claims was received. In other words, did they have sufficient information on March 4, 2019 or not until March 6, 2019?

         Defendants admit to receiving Plaintiffs' settlement demand letters “with a portion of supporting documents on March 4, 2019 via email correspondence.” (Doc. 1 at 2, ¶ 4). These demand letters specified settlement amounts totaling $475, 000 and included an itemization of past medical expenses for each defendant: $34, 337.66 for Hunter and $3, 313.00 for Robinson. They also contained specific information about injuries sustained, treatment required and gave the names of the caregivers and the dates when medical care was sought. The attachments to these letters were specifically identified in the email correspondence by eleven categories of information, including an accident report, a causation letter, photographs and medical records with corresponding bills. As stated previously, the entirety of this information, without dispute constitutes notice that the case was removable. That is why the Court requested an assessment from the parties as to the information that was ...