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Sleep v. Schwan's Co.

United States District Court, D. New Mexico

May 15, 2019

SCHWAN'S COMPANY, et al., Defendants,



         THIS 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.[1] For the reasons discussed below, the Court finds that Defendants timely filed a “Notice of Removal” (“Notice”) [ECF 1].[2] 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 Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff 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 suit.

         After 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.


         Plaintiff's 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.

         Defendants 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.


         A 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))).

         In 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)).

         A 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 remanded.” Id.

         IV. ANALYSIS

         The 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.

         A. Defendants Timely ...

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