Taylor v. Tractor Supply Company
Filing
11
OPINION AND ORDER denying 6 Motion to Remand to State Court. Signed by Judge John E. Steele on 10/28/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEFFREY TAYLOR,
Plaintiff,
v.
Case No: 2:14-cv-555-FtM-29DNF
TRACTOR SUPPLY COMPANY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Remand
to
State
Court
(Doc.
#6)
filed
on
October
2,
2014.
Defendant filed a Response to Plaintiff’s Motion to Remand (Doc.
#8) on October 10, 2014.
untimely
from
the
Plaintiff argues that the removal is
initial
pleading,
and
further
argues
that
defendant may not file a second removal on the same grounds as a
prior removal.
The motion is due to be denied.
1. Prior Removal
On March 24, 2014, Tractor Supply Company (Tractor Supply)
filed
a
Notice
of
Removal
in
Case
No.
2:14-cv-169-FTM-38DNF
removing a case from the Twentieth Judicial Circuit Court, in and
for
Charlotte
County,
on
the
basis
of
diversity.
Defendant
removed the case on the “assumption that Plaintiff is a resident
of the state of Florida”, and by suggesting that the allegations
in the Complaint could support a finding that the amount in
controversy would exceed $75,000, but that requests for admissions
be allowed to support the allegation.
9, 14.)
(2:14-cv-169, Doc. #1, ¶¶
Defendant was unable to show why the case should not be
remanded for lack of subject-matter jurisdiction, both for the
failure to support plaintiff’s place of domicile and because the
amount in controversy was not supported, and on June 11, 2014, the
case was remanded to state court.
(Id., ¶ 18.)
2. Current Removal
The case was removed for a second time, again based on
diversity of citizenship between the parties.
The Amended Notice
of Removal (Doc. #1) alleges that plaintiff’s permanent residence
is now established in the State of Florida by way of plaintiff’s
Answers to Defendant’s Second Set of Interrogatories.
¶ 11.)
(Doc. #1,
Defendant otherwise states that its citizenship is that
of Delaware and Tennessee.
(Id., ¶ 12.)
Therefore, the parties
are now established to be diverse in their citizenship.
As to the amount in controversy, on August 27, 2014, in
response to a Third Request for Admission that the amount in
controversy
“Denied.”
is
less
than
$75,000,
(Doc. #1, ¶¶ 14-15.)
plaintiff
simply
responded
Defendant filed the Amended
Notice of Removal on September 22, 2014, within 30 days of the
Response to defendant’s Third Request for Admission, alleging that
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the amount in controversy could now be shown to meet the requisite
$75,000.
Defendant alleges that plaintiff’s denial to “the amount
in controversy in this matter is less than $75,000”, coupled with
the allegations in the Complaint of bodily injury, permanent
aggravation
of
a
pre-existing
condition,
disfigurement,
disability, mental anguish, loss of the capacity for the enjoyment
of life, expenses of hospitalization, and medical and nursing care
and treatment, are sufficient to support the amount in controversy.
(Doc. #1, ¶ 14; Doc. #2, ¶ 11.)
Request
for
Admission
alone
Although the Answer to the Third
is
insufficient
(the
amount
in
controversy must exceed $75,000), the Court agrees the admission
and the allegations in the Complaint viewed in their entirety
satisfy the jurisdictional amount.
3. Timeliness
Under Section 1446(b), a notice of removal must be filed
within 30 days of the receipt by defendant of the initial pleading
if the case is removable at the time.
28 U.S.C. § 1446(b)(1).
If
the case is not removable at the time of the initial pleading, “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.”
28 U.S.C. § 1446(b)(3).
The Court rejects plaintiff’s argument
- 3 -
that the removal is untimely.
Removal was not proper based on the
initial Complaint, but removal may also be timely within 30 days
of “other paper” establishing the basis for removal.
Defendant
removed within 30 days of discovery responses supporting subjectmatter jurisdiction.
Therefore, the removal was timely made.
4. Successive Removal
Plaintiff relies upon one line in a non-binding case, Sibilia
v. Makita Corp., 782 F. Supp. 2d 1329, 1330-1331 (M.D. Fla. 2010).
In Sibila, the Court stated: “Plaintiff, however, is correct that
‘a party is not entitled, under existing laws, to file a second
petition for removal upon the same grounds, where, upon the first
removal by the same party, the federal court declined to proceed
and remanded the suit. . . .’”
Sibilia v. Makita Corp., 782 F.
Supp. 2d 1329, 1330-31 (M.D. Fla. 2010) (citing St. Paul & C.
Railway Co. v. McLean, 108 U.S. 212, 217 (1883)).
Plaintiff fails
to note, however, that the very next line states:
“But this
language does not prevent successive removals provided that the
subsequent removal petition alleges a different factual basis for
seeking removal and otherwise meets the requirements of section
1446(b).”
Id.
at
1331
(citations
omitted).
In
this
case,
defendant removed the case after discovery and upon review of
“other paper”.
Therefore, the second removal was not prohibited.
Accordingly, it is hereby
- 4 -
ORDERED:
Plaintiff's Motion for Remand to State Court (Doc. #6) is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2014.
Copies:
Counsel of Record
- 5 -
28th
day
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