BRIAN C. WIMES, District Judge.
This matter is before the Court on Plaintiff's Motion to Remand and Suggestions in Support (Doc. #7). Plaintiff contends Defendant Shadow Creek, LLC's ("Defendant") notice of removal was untimely because it was filed more than thirty days after Defendant received notice that the amount in controversy exceeds $75,000. After reviewing the premises of the motion, the record, and the applicable law, the Court finds the notice of removal was timely and denies the motion.
Plaintiff filed a petition in state court on May 7, 2014. She subsequently filed a First Amended Petition on July 9, 2014, and a Second Amended Petition on September 30, 2014. All of her petitions allege state law claims and seek judgment "in a fair and reasonable amount in excess of Twenty-Five Thousand Dollars ($25,000), plus costs."
On November 25, 2014, Defendant removed the action to federal court based on diversity jurisdiction. Defendant's notice of removal ("Notice") explains that Defendant received discovery on October 27, 2014, indicating that Plaintiff seeks over $80,000 in damages. The Notice states that removal is timely because Defendant filed the Notice within thirty days of receiving this discovery.
On December 9, 2014, Plaintiff filed the instant motion. Plaintiff contends the removal is untimely because Defendant knew as early as January 2014 that the amount in controversy exceeded the jurisdictional minimum.
Under 28 U.S.C. § 1332(a), federal district courts have "original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States . . . ." Such actions may be removed to federal court under 28 U.S.C. § 1441, and the timeliness of removal based on diversity jurisdiction is governed by 28 U.S.C. § 1446(b).
Section 1446(b) provides two thirty-day periods for removing a case. The first period is triggered if the case stated by the initial pleading is removable.
If a notice of removal is untimely filed, a plaintiff may move to remand the action to state court. 28 U.S.C. § 1447(c). Once challenged, the defendant bears the burden of establishing federal jurisdiction and demonstrating that all procedural prerequisites are satisfied.
Plaintiff argues that by the time Defendant received her petition, it knew that the case was removable based on her January 2014 settlement demand. Plaintiff contends Defendant's Notice is therefore untimely because it was not filed within thirty days of Defendant's receipt of the petition. Stated differently, Plaintiff argues that her settlement demand constitutes an "other paper" that operates in tandem with a vague initial pleading to trigger a hybrid thirty-day period. The Court rejects this argument for the following reasons.
First, Plaintiff's hybrid approach is inconsistent with Eighth Circuit case law interpreting the first thirty-day period. In
Second, Plaintiff's argument that her settlement demand constitutes an "other paper" under the second thirty-day period violates rules of statutory construction. Principally, her argument renders the statute nonsensical. If Plaintiff's January 2014 settlement demand is an "other paper" for purposes of the second thirty-day period, then the plain language of the statute would require Defendant to file a notice of removal several months before receipt of the state court petition. This is illogical given that "a case cannot be removed before its inception."
Plaintiff's argument also ignores the canon of construction that items in a list that share an attribute "counsels in favor of interpreting the other items [in the list] as possessing that attribute as well."
Rather, the Court finds Defendant has demonstrated that the Notice was timely filed. Because Plaintiff's state court petition lacked any indication that the amount in controversy exceeded $75,000, it did not trigger the first thirty-day period. Plaintiff's October 27, 2014 discovery response, however, triggered the second thirty-day period. The parties do not dispute that Plaintiff's discovery response constitutes an "other paper," and Plaintiff's discovery response contained copies of bills from various healthcare providers that totaled over $80,000. Because Defendant filed the Notice within thirty days of receiving Plaintiff's October 27, 2014 discovery response, which was "other paper from which it may first be ascertained that the case is . . . removable," the Court denies Plaintiff's motion to remand.
ORDERED Plaintiff's Motion to Remand and Suggestions in Support (Doc. #7) is DENIED.
IT IS SO ORDERED.