REPORT AND RECOMMENDATION

KAREN L. HAYES, Magistrate Judge.

Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to remand [doc. # 9] filed by plaintiff Karen Bolyer. The motion is opposed. For reasons set forth below, it is recommended that the motion to remand be DENIED.

Background

Karen Bolyer filed the above-captioned suit on July 11, 2017, against defendants Circle H Trucking of Ashley, L.L.C. ("Circle H") and Jonathan McKelvey in the Fourth Judicial District Court for the Parish of Morehouse, State of Louisiana. (Petition). Bolyer seeks recovery for severe personal injuries and damages that she sustained following a June 16, 2017, motor vehicle accident that occurred when her stationary vehicle was struck from behind by a Circle H logging truck operated by McKelvey.

Defendants were personally served with the state court petition on September 30, 2017. (Affidavits; M/Remand, Exh. A). On March 2, 2018, defendants removed the case to federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (Notice of Removal). On March 29, 2018, plaintiff filed the instant motion to remand on the grounds that removal purportedly was untimely. 28 U.S.C. § 1447(c). Defendants filed their opposition to the motion to remand on April 30, 2018. [doc. # 14]. Plaintiff did not file a reply, and the time to do so has lapsed. See Notice of Motion Setting [doc. # 10]. Thus, the matter is ripe.

Law and Analysis

A defendant may remove an action from state court to federal court, provided the action is one in which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing defendant bears the burden of establishing federal subject matter jurisdiction and ensuring compliance with the procedural requirements of removal. Id. Because federal courts are courts of limited jurisdiction, a suit is presumed to lie outside this limited jurisdiction unless and until the party invoking federal jurisdiction establishes to the contrary. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation omitted). The removal statutes are strictly construed in favor of remand. Manguno, supra.

In this case, defendants invoked the court's subject matter jurisdiction via diversity, which requires complete diversity of citizenship between plaintiff and defendants, and an amount in controversy greater than $75,000.1 28 U.S.C. § 1332(a). Plaintiff does not contest that the parties are completely diverse, and that the amount in controversy exceeds $75,000. (Pl. M/Remand, Memo., pg. 7).2 Although the parties cannot confer federal subject matter jurisdiction via consent,3 the record establishes that the parties are completely diverse4 and that the amount in controversy exceeded $75,000 at the time of removal.5 Thus, the sole issue is whether defendants complied with the procedural requirements of removal.

The removal process is fraught with procedural pitfalls for the unwary defendant including, but not limited to, the temporal filing limitations at issue here. Under the removal statute, a defendant must file a notice of removal: 1) within 30 days after the defendant receives, through service or otherwise, a copy of the initial pleading setting forth the claim for relief, or the summons, whichever period is shorter; or 2) if the case "stated by the initial pleading is not removable," within 30 days after defendant's receipt, "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)(1) & (3).6

Here, plaintiff contends that the allegations in her original petition provided defendants with sufficient notice to trigger the initial 30 days window for removal. Specifically, she emphasizes that she alleged that her damages far exceeded the minimum jurisdictional limits for the right to a jury trial (i.e., $50,000), and also included unspecified damages claims. These allegations appear in the prayer, as follows:

PRAYER FOR RELIEF

The second paragraph V in plaintiff's Petition for Damages is as follows:

V.

JURY TRIAL DEMAND

Plaintiff requests a trial by jury. (Petition) (emphasis added).

Plaintiff contends that her allegation that her damages are "far in excess of the minimum jurisdictional limits of this Honorable Court, for which she now sues," referenced the $50,000 minimum for a jury trial.7 It is apparent, however, that the petition's "far in excess" allegation referred to the minimum requirements for the exercise of jurisdiction in the state court, which, as it turns out, has no jurisdictional minimum at all. See La. Const. Ann. art. V, § 16. Moreover, the jury demand is included in a separate paragraph, and merely establishes that plaintiff is seeking more than $50,000. In short, plaintiff's "far in excess" allegation is unhelpful for purposes of confirming amount in controversy for purposes of diversity jurisdiction.

Furthermore, plaintiff's allegation that she has severe and likely permanent injuries does not establish amount in controversy. Most every diversity case that this court sees includes similar allegations, which sometimes turn out to be mere hyperbole.

In any event, however, § 1446(b)'s first 30 day removal period is not triggered unless the initial pleading includes a "specific allegation that damages are in excess of the federal jurisdictional amount." Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992); Mumphrey v. CVS Pharmacy, Inc., 719 F.3d 392, 400 (5th Cir. 2013).8 Here, plaintiff's protestations notwithstanding, her original petition does not contain any such allegation;9 thus, the initial 30 day removal window was not triggered.10

Plaintiff further contends that her discovery responses do not establish unequivocally that her damages exceeded $75,000, as required to trigger the second 30 day removal period.11 In Bosky v. Kroger Texas, LP, the Fifth Circuit endeavored to establish another "bright line" rule for purposes of Section 1446(b)'s second 30-day removal period. Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002). The court explained that

Id. (footnote omitted).

Thus, the question becomes what must be included in an "amended pleading, motion, order, or other paper" to make it "unequivocally clear and certain" that the amount in controversy exceeds the jurisdictional threshold?

Despite some confusion,12 Bosky managed to provide the lower courts with some guidance. The court cited Fifth Circuit cases such as S.W.S. Erectors, Inc. v. Infax, Inc., and Wilson v. Belin, that it deemed consistent with its "unequivocally clear and certain" standard. Bosky, supra (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 491-92 (5th Cir. 1996); Wilson v. Belin, 20 F.3d 644, 651 n.8 (5th Cir. 1994)).13 In both S.W.S. Erectors and Wilson, the removals were premised upon written evidence obtained from plaintiffs which acknowledged specific damage figures that exceeded the federal jurisdictional minimum. Id.

In addition, Bosky relied on the different meanings attributable to "setting forth" and "ascertained"—the two terms used to describe the information needed to trigger the first and second 30-day removal windows—to infer that the requisite trigger for the second removal period is necessarily stiffer than Chapman's bright-line rule for the initial removal period. Bosky, supra.

While it is difficult to conceive of a more demanding requirement than that particularized by Chapman, i.e., a specific allegation that damages exceed the federal jurisdictional minimum, one must recall that Bosky was decided under the mistaken premise that Chapman's bright-line rule had been degraded by subsequent amount-in-dispute cases, which, as it turns out, are inapposite. See Mumfrey, supra. Thus, Bosky should be read as imposing a trigger for the second removal period that is at least as strict as that set forth in Chapman.14

Consistent with this interpretation, the "other paper[s]" that the Bosky defendants relied on to support removal were documents that revealed actual medical expenses in excess of $75,000. Bosky v. Kroger, Appellee Brief, 2001 WL 34127780. Even more telling is that more than thirty days before removal, the defendants obtained discovery from the plaintiff stating that the plaintiff would "not seek more than $500,000.00 for all of her damages and may seek less than this amount . . ." plus a written statement that the plaintiff's medical damages were around $50,000. Id. By finding removal timely, Bosky effectively held that the foregoing evidence was insufficient to commence the 30-day removal period. Rather, the 30-day removal clock was not triggered until defendant obtained written proof of actual damages that exceeded the jurisdictional minimum.

Here, plaintiff contends that her discovery responses merely referred defendants back to the allegations in her initial petition. Consequently, she argues, if her initial petition did not trigger the initial 30 day removal window, then her discovery responses also did not suffice to trigger the second 30 day window. Quite to the contrary, however, and as the court detailed earlier, plaintiff's discovery responses included medical treatment records and bills documenting medical expenses of $26,224, plus a diagnosis of an accident-induced herniated disk, and a request for authorization to perform surgery. These medical records sufficed to establish by a preponderance of the evidence that the amount in controversy exceeded $75,000, at the time of removal.15

Insofar as plaintiff contends that the discovery responses did not make it "unequivocally clear and certain" that the amount in controversy exceeded $75,000, the court agrees. However, that does not then render removal premature. To explain, the 30-day time limit to remove under Section 1446(b)(3) is only triggered when the factual basis for removal can be proven by "a simple and short statement of facts." Bosky, supra. Consequently, if a defendant has to analyze and dissect medical treatment records to divine whether the nature and cause of a plaintiff's injuries satisfy the amount in controversy requirement, then those papers do not make removal "unequivocally clear and certain" as Bosky contemplated. Likewise, if a defendant has to conduct independent research by consulting "quantum books," then the discovery responses are not sufficiently "unequivocally clear and certain" to trigger the 30-day removal period. See Cole ex rel. Ellis v. Knowledge Learning Corp., 416 F. App'x 437, 440 (5th Cir. March 4, 2011) (unpubl.).

Here, there are no documents that clearly and unequivocally prove that the actual damages exceed the jurisdictional minimum; by extension, there are no documents that show that the 30-day removal window has been triggered. See Smith v. Wal-Mart Louisiana, LLC, 2013 WL 4781778, at *1 (W.D. La. Sept. 5, 2013) (facts indicating that plaintiff underwent anterior cervical fusion and diskectomy surgery, accrued $42,000 in medical expenses, and was unable to work did not unequivocally show that the amount in controversy exceeded $75,000). This is especially true considering that defendants conducted a quantum study before removing, and that defendants had to dissect numerous medical records to deduce whether plaintiff's alleged damages satisfied the requisite threshold.

That said, remand is not the result. The "unequivocally clear and certain" standard is applied when a court is determining whether a defendant has timely removed, not whether removal was permissive. Stated differently, the Section 1446(b)(3) 30-day clock acts as a ceiling or limit on removal, not as a jurisdictional floor. As one court put it, Section 1446 "does not say anything about removals that occur too soon." Robinson v. Quality Ins. Co., 633 F.Supp. 572, 576 (S.D. Ala. 1986). If, before the 30-day clock starts, a defendant can demonstrate by a preponderance of the evidence that the jurisdictional threshold is met, he or she may remove without being required to "unlock" the 30-day window by presenting "unequivocally clear and certain" evidence.

As discussed above, the court finds that the documents presented do prove, by a preponderance of the evidence, that the amount in controversy exceeded the jurisdictional minimum. Therefore, while the documents do not meet the unequivocally clear and certain standard which would have required the defendants to remove the case within thirty days, there was sufficient evidence to make removal proper and defendants were not prohibited from removing on the basis of same.16

Conclusion

For the above-assigned reasons, the undersigned finds that the removal did not transgress § 1446(b)'s 30 day removal limits. 28 U.S.C. § 1446(b)(1) & (3). Accordingly,

IT IS RECOMMENDED that plaintiff's motion to remand [doc. # 9] be DENIED.

Under the provisions of 28 U.S.C. §636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.

A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.