J. RANDAL HALL, District Judge.
Currently before the Court is Plaintiff's motion to remand. (Doc. 12.) Because Defendants timely removed to this Court, Plaintiff's motion is
This case arises out of injuries Plaintiff Debbie Helmly sustained when she tripped and fell while shopping at Kmart. In November —, Plaintiff visited the Kmart located in Statesboro, Georgia. (Doc. 1-1 ¶ 9.) While in the garden department of the store, Plaintiff tripped on a lawnmower wheel that extended into the customer walkway. (
Plaintiff's complaint alleges that Defendants knew about the dangerous condition the lawnmower wheel created. (
Two weeks after Plaintiff served her complaint on Defendants, her counsel received a call from Defendants' insurance adjuster. (Doc. 12-3 ¶ 7.) During this call, Plaintiff's counsel informed the adjuster that Plaintiff sustained injuries to her neck and back and had undergone two surgeries. (
On January 22, 2016, during the initial round of discovery, Plaintiff's counsel e-mailed Defendants' counsel regarding her responses to Defendants' discovery requests. (Doc. 12-5.) In that e-mail, Plaintiff's counsel explained that Plaintiff's discovery responses were late because Plaintiff had been in and out of the hospital and had undergone surgery. (
Under 28 U.S.C § 1441, a defendant may remove an action filed in state court to federal court if the action could have originally been brought in federal court. When the parties are diverse and the amount in controversy exceeds $75,000, original jurisdiction exists under 28 U.S.C. § 1332. Here, the parties are diverse and the amount in controversy exceeds $75,000. Plaintiff, therefore, does not dispute jurisdiction. Rather, she contends that Defendants did not timely remove this action.
Generally, a defendant must remove within thirty days from the date it receives the initial pleading. 28 U.S.C. § 1446(b)(1). But when an action is not removable based on the initial pleading, "a notice of removal may be filed within 30 days after receipt by the defendant ... 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)(3).
A removing defendant has the burden to establish federal jurisdiction,
In this case, Plaintiff maintains that it was apparent from her initial pleading that this case was removable, so Defendants were required to remove within thirty days from the date they received her complaint. Alternatively, Plaintiff asserts that Defendants were required to remove within thirty days from her counsel's conversation with Defendants' insurance adjuster or within thirty days from her counsel's January 22 e-mail.
When a state-court complaint does not claim a specific amount of damages, a case may be removed based on the complaint only if it is "facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement."
Here, Plaintiff's complaint alleges only basic details surrounding the events of her fall and conclusory statements regarding her damages. Specifically, as noted above, her complaint claims only that she suffered and will continue to suffer injuries to her lower back and neck, that she was accumulating unspecified medical expenses, and that she suffered emotional and physical pain and suffering. Considering the lack of detail in the complaint, had Defendants attempted to remove based solely on this pleading, they would have been unable to prove, by a preponderance of the evidence, that the amount in controversy was met. Thus, the Court rejects Plaintiff's argument and
When a plaintiff's complaint does not provide sufficient allegations to support removal, a defendant may remove within thirty days from the date it receives "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)(3). Documents constituting other paper include discovery responses, settlement offers, deposition testimony, demand letters, and e-mails.
First, Plaintiff argues that her counsel's conversation with Defendants' insurance adjuster constitutes other paper from which Defendants could have ascertained that this, case was removable. Plaintiff's argument fails because the Court declines to consider this off-the-record telephone conversation other paper for purposes of § 1446.
Plaintiff also argues that Defendants were required to remove within thirty days from the date their counsel received Plaintiff's counsel's January 22 e-mail. Because this document satisfies the written requirement of other paper, the only disputed issue is whether the e-mail made removability ascertainable. In this e-mail, Plaintiff's counsel explained that her client's discovery responses were late because Plaintiff had been in and out of the hospital after facing difficulties recovering from surgery. (Doc. 12-5.) The e-mail, however, did not inform Defendants' counsel of the severity of the surgery or provide the cost of Plaintiff's hospital visits. And this information was requested in the interrogatories Plaintiff had delayed responding to. The Court is satisfied that, had Defendants attempted to remove based solely on this e-mail, they would have been unable to establish federal jurisdiction by a preponderance of the evidence.
Because this case was not removable based on Plaintiff's counsel's phone conversation with Defendants' insurance adjuster or based on her e-mail to Defendants' counsel, the Court
For the reasons explained above, Plaintiff's motion to remand (doc. 12) is