United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's “Motion
to Remand and Memorandum of Law” (“Motion”)
[ECF 14], filed March 19, 2019. The Motion is fully briefed.
See ECFs 14, 19, 20, 21. For the reasons discussed
below, the Court finds that Defendants timely filed a
“Notice of Removal” (“Notice”) [ECF
Furthermore, the Court holds that Defendants have made a
plausible allegation, established by a preponderance of the
evidence, that the amount in controversy now exceeds $75,
000. Consequently, the Court will DENY
initiated the instant action in the Eighth Judicial District
Court for the State of New Mexico. Grounded in products
liability, negligence, and bad faith insurance practices,
this lawsuit stems from a nail allegedly found in a frozen
pizza that Plaintiff purchased from a store owned by
Defendant Dollar General Corporation. See ECF 1, Ex.
B, Plaintiff's First Amended Complaint, 21-35
(hereinafter “FAC”). Plaintiff alleges that
Defendant Schwan's Company manufactured the pizza.
Id. Unaware of the nail, Plaintiff bit into the
pizza and suffered damage to a veneered tooth. Id.
Immediately after the incident, Plaintiff retained an
attorney who then contacted Defendants to make a claim for
damages. Id. After discussion between the parties,
Plaintiff submitted the pizza and nail to a forensic
laboratory specifically used by Defendants Schwan's
Company and Schwan's Shared Services LLC for food related
claims. Id. Soon after, Plaintiff filed the instant
all Defendants answered, Plaintiff sent a demand package,
which included information about her intent to add additional
claims as well as a discussion regarding the value of the
claim. See Resp. Ex. A. Defendants received the
demand package on January 17, 2019. See Mot. 4;
see also Resp. 4. Believing that the demand package
now established federal diversity jurisdiction, Defendants
removed the case to this Court on February 19, 2019.
See ECF 1. Plaintiff has challenged the removal in
the instant Motion.
SUMMARY OF ARGUMENTS
request for remand is two-pronged. First, Plaintiff argues
that Defendants' Notice was untimely under 28 U.S.C.
§ 1446, an infirmity that requires remand. Mot. 3.
Second, Plaintiff asserts that Defendants inadequately
established the amount in controversy threshold required for
diversity jurisdiction under 28 U.S.C. § 1332 because
the Notice failed to prove to a “legal certainty”
that the sum at issue exceeds $75, 000. Id.
disagree. According to them, the 30-day limitation on removal
is calculated not by mechanically adding 30 days to the date
a case becomes removable, but rather by also applying Federal
Rule of Civil Procedure 6, which takes into account that due
dates sometimes fall on weekends or legal holidays. Resp.
3-5. Defendants also dispute Plaintiff's representation
that a removing defendant must prove to a “legal
certainty” that the amount in controversy in a case
removed on diversity jurisdiction exceeds $75, 000. Instead,
Defendants contend that the correct burden merely requires
that the Notice include a “plausible allegation”
that the amount in controversy exceeds $75, 000, a burden
Defendants believe they have met. Id. at 5-7.
defendant may invoke 28 U.S.C. § 1441(a) to remove a
civil action to the federal district court “embracing
the place where such action is pending” if the
requirements for original federal jurisdiction are met. 28
U.S.C. § 1441(a); see Huffman v. Saul Holdings
Ltd., 194 F.3d 1072, 1076 (10th Cir. 1999) (“When
a plaintiff files in state court a civil action over which
the federal district courts would have original jurisdiction
based on diversity of citizenship, the defendant or
defendants may remove the action to federal court.”
(quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68
(1996))). Removal based on diversity jurisdiction must comply
with 28 U.S.C. § 1332. Under § 1332(a), a federal
district court “shall have original jurisdiction of all
civil actions where the amount in controversy exceeds the sum
or value of $75, 000” and where diversity between the
parties is complete. 28 U.S.C. § 1332(a); see Paros
Properties LLC v. Colorado Cas. Ins. Co., 835 F.3d 1264,
1269 (10th Cir. 2016) (removal requires amount in controversy
to exceed $75, 000 (citing § 1332(a) (requirements for
diversity jurisdiction) and § 1441(a) (requirements for
removal)); Sylvia v. Wisler, 875 F.3d 1307, 1311 n.1
(10th Cir. 2017) (“[T]here must be ‘complete
diversity between all plaintiffs and all
defendants.'” (quoting Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 89 (2005))).
addition, a defendant must also comply with 28 U.S.C. §
1446 to remove a civil action. Under this statute, a notice
of removal ordinarily must be filed “within 30 days
after the receipt by the defendant, through service or
otherwise, 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)(1). But “if the
case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt
by the defendant, 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.” § 1446(b)(3). A
defendant's “failure to comply with these express
statutory requirements for removal can fairly be said to
render the removal ‘defective' and justify a
remand.” Huffman v. Saul Holdings Ltd. Partn.,
194 F.3d 1072, 1077 (10th Cir. 1999) (quoting Snapper,
Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir. 1999)).
plaintiff may move to remand a case back to state court on
the basis of a “defect other than subject matter
jurisdiction” by filing a motion within “30 days
after the filing of removal under section 1446(a).” 28
U.S.C. § 1447(c). If, however, “at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be
Court must address two issues in its determination of whether
Defendants properly removed this case: whether the Notice was
timely filed and, if so, whether this Court possesses subject
matter jurisdiction over the matter. As explained below, this
Court concludes that the Notice was timely filed and that it
has subject matter jurisdiction over this case.
Defendants Timely ...