United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT
the Court is Plaintiffs' Motion to Remand to State Court.
(Doc. 4.) For the following reasons, the Court concludes that
Defendant's removal was timely under 28 U.S.C. §
1446(b)(3). Accordingly, Plaintiffs' Motion to Remand to
State Court is DENIED.
case stems from a slip and fall that Plaintiff Jack Streicher
suffered at a Sam's Club in Savannah, Georgia. (Doc. 1,
Ex. 3 at 7.) Plaintiffs claim that on October 22, 2017, while
Plaintiff Jack Streicher was a customer-member at Sam's
Club, he slipped and fell due to a hazardous condition then
existing upon Defendant's premises. (Id.)
Plaintiffs filed this action in the State Court of Chatham
County on August 15, 2018. (Id.) In the complaint,
Plaintiff Jack Streicher brought claims for premises
liability and his injuries and Plaintiff Helene Streicher
brought a claim for loss of consortium. (Id. at
8-10.) The Complaint seeks special and general damages in an
unspecified amount. (Id. at 9-10.)
January 2, 2019, Defendant removed the case to this Court on
the basis of diversity of citizenship. (Doc. 1.) Plaintiffs
now seek to have this case remanded on the grounds that
Defendant did not timely file its notice of removal. (Doc.
4.) Plaintiffs argue that the case became removable when they
responded to Defendant's Requests for Admission regarding
the amount in controversy on September 20, 2018 because
Plaintiffs specifically denied the following three requests:
1. Plaintiff will not seek, recover, or collect from
Defendant Sam's East, Inc. or from any Sam's entity a
sum in excess of $75, 000;
2. Any portion of a verdict against Defendant that exceeds
$75, 000 will be written down by the Court so that the
Judgment shall not exceed the sum of $75, 000;
3. Neither Sam's East, Inc. nor any other Sam's
entity in this action shall be ordered, adjudged or called
upon to pay Plaintiffs a sum in excess of $75, 000.
(Doc. 4 at 2.) Plaintiffs argue that, because the case was
removable as of September 20, 2018, Defendant's January
2, 2019 notice of removal was untimely and that, accordingly,
this case must be remanded to state court. (Id.)
Defendant meanwhile contends that the case did not become
removable until Plaintiffs' counsel transmitted a demand
to Defendant's counsel to settle the case for $150,
000.00 on December 14, 2018. (Doc. 9 at 6.) Defendant argues
that Plaintiffs' "denials do not act as admissions
that the amount in controversy exceeds $75, 000, but rather
show that the factual matter remain[ed] disputed" and,
therefore, its notice of removal was timely filed.
Standard of Review
courts are courts of limited jurisdiction and may only hear
cases which they have been authorized to hear by the
Constitution or Congress. See Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994) . For a case originally filed in state
court, a defendant may remove the matter to federal court
only if the federal court has jurisdiction. 28 U.S.C. §
1441(a). "While a defendant does have a right, given by
statute, to remove in certain situations, plaintiff is still
master of his own claim." See Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Consistent
with this traditional concept, a defendant seeking removal
bears the burden of proving the existence of federal
jurisdiction. See, e.g., Diaz v. Sheppard,
85 F.3d 1502, 1505 (11th Cir. 1996).
defendant seeks removal on the basis of diversity
jurisdiction, he must demonstrate that the parties are
diverse and that the amount in controversy exceeds $75, 000,
exclusive of fees and costs. See 28 U.S.C. §
1332(a); 28 U.S.C. § 1441(a). In a typical case where a
plaintiff claims no specific amount of damages in her state
court complaint, "a removing defendant must prove by a
preponderance of the evidence that the amount in controversy
more likely than not exceeds the [$75, 000] jurisdictional
requirement." Burns, 31 F.3d at 1094.
Additionally, the defendant must file the notice of removal
"within 30 days after the receipt by the defendant ...
of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based."
28 U.S.C. § 1446(b). However, if the case cannot be
determined to be removable on the face of the initial
complaint, then "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).
Timeliness of ...