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Streicher v. Sam's East, Inc.

United States District Court, S.D. Georgia, Savannah Division

March 4, 2019

JACK STREICHER and HELENE STREICHER, Plaintiffs,
v.
SAM'S EAST, INC. d/b/a SAM'S CLUB, Defendant.

          ORDER

          WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT

         Before 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.

         BACKGROUND

         This 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.)

         On 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. (Id.)

         ANALYSIS

         I. Standard of Review

         Federal 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).

         When a 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).

         II. Timeliness of ...


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