Huffman v. Draghici et al
OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Motion for Remand 10 is GRANTED, and this case is REMANDED back to the Lake Superior Court of Indiana. Signed by Judge Rudy Lozano on 9/28/2017. (cc: cert copy of order and docket sheet to Lake Superior Court) (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
DIANA N. HUFFMAN,
DENIS DRAGHICI and
CAUSE NO. 2:16-CV-446
OPINION AND ORDER
This matter is before the Court on Motion for Remand, filed
by the plaintiff, Diana N. Huffman, on November 15, 2016.
For the reasons set forth below, the Motion for Remand is
GRANTED, and this case is REMANDED back to the Lake Superior Court
(“Plaintiff”) filed her Complaint for Damages and Jury Demand
(“Complaint”) against the defendants, Denis Draghici and Olero,
Inc. (collectively, “Defendants”), in the Lake Superior Court of
The case was assigned cause number 45D04-1510-
Plaintiff’s negligence claims arise from a
vehicle collision on May 9, 2015.
The Complaint alleges
that Plaintiff “sustained injuries, some of which may be permanent,
incurred medical expenses and was otherwise damaged.”
Defendants filed an Answer and Affirmative Defenses to Plaintiff’s
Complaint for Damages (“Answer”) with the Lake Superior Court on
December 9, 2015.
On October 17, 2016, Defendants filed
a Notice of Removal premised on diversity jurisdiction under 28
U.S.C. § 1332(a).1
In it, Defendants state that the
action was removable pursuant to the provisions of 28 U.S.C. §
1441(a) because Plaintiff issued a Qualified Settlement Offer
Pursuant to I.C. § 34-50-1-1 et. seq. (“Settlement Offer”) to
Defendants on September 23, 2016, offering to settle the case for
(Id.; see also DE #1-3.)
On November 15, 2016, Plaintiff filed the instant Motion for
Remand, arguing that the Notice of Removal was untimely because it
was filed more than one year after the filing of the Complaint.
Defendants filed a response in opposition to the Motion
for Remand arguing that Plaintiff acted in bad faith by failing to
disclose the amount in controversy, which prevented Defendants
It is undisputed that Defendants are citizens of Illinois and Plaintiff is
a citizen of Indiana.
from removing the action sooner.
On November 28, 2016,
Plaintiff filed her reply, pointing out that the Settlement Offer
was sent prior to the expiration of the one year limitation.
The motion is ripe for adjudication.
A civil case brought in state court may be removed to federal
court as long as the district court has original jurisdiction and
the notice of removal is timely.
See Boyd v. Phoenix Funding
Corp., 366 F.3d 524, 529 (7th Cir. 2004) (citing 28 U.S.C. §§ 1441,
Defendants who wish to remove a civil action from state
court to federal court must file a “notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure and
containing a short and plain statement of the grounds for removal
. . . .”
28 U.S.C. § 1446(a).
The basic requirements for removal
are as follows:
The notice of removal of a civil action or
proceeding shall 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,
or within 30 days after the service of summons
upon the defendant if such initial pleading
has then been filed in court and is not
required to be served on the defendant,
whichever period is shorter.
28 U.S.C. § 1446(b)(1).
However, if the initial complaint does
not provide an immediate basis for removal, a notice of removal
may be filed within 30 days of service of a pleading, motion,
order, or “other paper”2 from which it can first be ascertained
that the action is removable.
28 U.S.C. § 1446(b)(3).
a case may not be removed under section 1446(b)(3) on the basis of
diversity jurisdiction more than one year after the commencement
of the action unless it can be shown that the plaintiff acted in
bad faith to prevent removal.
28 U.S.C. § 1446(c)(1).
notice of removal is filed more than 1 year after commencement of
deliberately failed to disclose the actual amount in controversy
to prevent removal, that finding shall be deemed bad faith under
28 U.S.C. § 1446(c)(3)(B).
A party who believes removal was improper may file a motion
to remand pursuant to 28 U.S.C. section 1447, and unless the defect
relates to the lack of subject matter jurisdiction, the motion
must be made within thirty days of the filing of the notice of
When a complaint fails to specify the amount in controversy, discovery
responses or other information in the state court record related to the
amount in controversy is considered an “other paper.” See 28 U.S.C. §
28 U.S.C. § 1447(c).
In any event, “[t]he party seeking
removal bears the burden of proving the propriety of removal;
doubts regarding removal are resolved in favor of the plaintiff’s
choice of forum in state court.”
Morris v. Nuzzo, 718 F.3d 660,
668 (7th Cir. 2013) (citing Schur v. L.A. Weight Loss Centers,
Inc., 577 F.3d 752, 758–59 (7th Cir. 2009); see also Chase v. Shop
‘N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)
(a party seeking to invoke federal jurisdiction must support her
jurisdictional allegations with “competent proof”).
Here, in addition to the relevant background information
described above, the following additional facts are undisputed:4
On April 27, 2016, approximately seven months after the Complaint
was filed in the Lake County Superior Court, Defendants’ attorney,
Bruce D. Jones (“Attorney Jones”), sent a letter to Plaintiff’s
counsel to express an interest in early resolution of the matter
and to request a mutual extension of time with respect to written
In response, on or about June 6, 2016, Plaintiff’s
It is undisputed that the instant Motion for Remand was filed within
thirty days of the Notice of Removal.
The Court has borrowed liberally from Defendants’ response brief for this
section of the facts. (DE #14, pp. 3-5.) The Court notes that Defendants do
not provide competent documentary evidence for most of these assertions.
However, because Plaintiff agrees with Defendants’ recitation of the facts
related to early discovery and settlement discussions (see DE #15, p. 1), and
because these facts are not dispositive of the issue, the Court assumes they
are true for purposes of the instant motion.
counsel indicated that Plaintiff was also interested in early
resolution and that Plaintiff would further evaluate the matter.
On or about June 29, 2016, Attorney Jones sent a follow-up email
to Plaintiff’s counsel regarding the status of this case.
August 25, 2016, Attorney Jones filed an unopposed motion to
continue the discovery deadlines in this case with the Lake County
Superior Court. On September 28, 2016, after receiving Plaintiff’s
requested some preliminary information and documentation regarding
Plaintiff had not yet responded to Defendants’ Interrogatories and
Requests for Production.
On or about October 3, 2016, Plaintiff’s
counsel responded via email stating that Plaintiff would extend
the Settlement Offer deadline until after written discovery had
been exchanged and defense counsel had an opportunity to depose
Defendants filed their Notice of Removal on October
17, 2016, after receipt of this correspondence.
Plaintiff failed to disclose the amount of her alleged damages
prior to her Settlement Offer, she acted in bad faith to prevent
removal, so the Motion for Remand should be denied.
replies by arguing that there is no indication of bad faith because
the Settlement Offer was provided to Defendants before October 6,
2016, the one year anniversary of the date the Complaint was filed.
The Court agrees with Plaintiff.
It is undisputed that
Plaintiff tendered her Settlement Offer, which indicates a desire
to settle the case for $375,000, to Defendants by September 23,
Even assuming, arguendo, that Plaintiff dragged her heels
related to her alleged injuries and special damages, Defendants
were on sufficient notice that the amount in controversy exceeded
section 1446(b) prior to the expiration of the one year deadline
referenced in section 1446(c)(1).
Although both parties proceed
upon the assumption that the “commencement of the action” was
October 6, 2015, the record indicates otherwise.
must look to applicable state law to determine when a suit is
See e.g. Schorsch v. Hewlett-Packard Co., 417 F.3d
748, 750 (7th Cir. 2005).
In Indiana, a civil suit is commenced
“when the initiating party files the original and necessary copies
of the complaint, the prescribed filing fee, and the original and
necessary copies of the summons.”
Holmes v. Celadon Trucking
Services of Indiana, Inc., 936 N.E.2d 1254, 1257 (Ind. App. 2010)
(citing Indiana Trial Rule 3).
Evidence that the required summons
documents were sent to the clerk via certified or registered mail
is sufficient to show that “filing” was complete.
Indiana Trial Rule 5(F)).
Although neither party addresses this
issue in detail, a review of the state court docket shows that, at
the latest, the suit was commenced by October 15, 2015.
N. Huffman v. Denis Draghici and Olero, Inc., Cause No. 45D041510-CT-00193 (Complaint filed October 6, 2015; $100 filing fee
paid on October 15, 2015; additional state and county fees paid on
October 15, 2015; summons issued to Defendants via certified mail
on October 15, 2015).
Either way, whether October 6th or October
15th is credited for commencement purposes, by the time Defendants
filed their Notice of Removal on October 17, 2016, it was too late.
Defendants offer no explanation for the delay between the date of
the Settlement Offer and the date of the filing of the Notice of
In reality, it matters little what the reason was.
Removal more than one year after the commencement of the suit is
only proper under section 1446(c) if the Court finds that Plaintiff
acted in bad faith to prevent removal.
assertion that Plaintiff did so by failing to disclose the amount
in controversy in a timely manner, there is absolutely no evidence
of bad faith in the record.
Defendants argue that Attorney Jones
“attempted to inquire as to removability through their numerous
correspondence regarding early resolution of this case.”
even crediting Defendants’ recitation of the facts as outlined
above,5 the Court finds nothing untoward in the sequence of events;
rather, the timeline suggests nothing more than typical discovery
extensions and early settlement communications.
Defendants do not
present evidence that they specifically asked Plaintiff about the
amount in controversy or about removal, nor have they shown that
Plaintiff declined to furnish them with that information upon
According to Defendants, the extensions of the discovery
deadlines were mutual, and there is no indication that Plaintiff
missed any court ordered deadlines.
Had Defendants provided
evidence to the contrary, the Court might be more willing to credit
their argument that Plaintiff acted in bad faith by deliberately
failing to disclose the actual amount in controversy in order to
As it stands, however, the fact that Plaintiff
did disclose her Settlement Offer in advance of the one year
deadline cuts heavily against any argument of bad faith advanced
If Plaintiff had truly wanted to prevent removal,
she could have waited until the deadline had passed altogether
and/or provided Defendants with misleading information to downplay
Again, the Court notes that Defendants do not cite to documentary evidence
to support their argument.
the amount in controversy. She did neither of those things. There
is simply no reasonable basis upon which to make a finding of bad
faith in this case.
As such, Defendants have failed to show by
competent evidence that the Notice of Removal, which was filed
more than one year after the commencement of the action, was
See Morris, 718 F.3d at 668; Schur, 577 F.3d at 758–59;
see also Chase, 110 F.3d at 427.
Accordingly, the Court finds
that remand is appropriate.
For the reasons set forth above, the Motion for Remand (DE
#10) is GRANTED, and this case is REMANDED back to the Lake
Superior Court of Indiana.
DATED: September 28, 2017
/s/RUDY LOZANO, Judge
United States District Court
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