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