Markey v. A.M.E. Services, Inc. et al

Filing 15

ORDER denying 9 Motion to Remand. Signed by Judge Jay C. Zainey on 10/23/12. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AQUANETTE MARKEY

CIVIL ACTION

VERSUS

NO: 12-1803

A.M.E. SERVICES, INC., et
al.

SECTION: "A" (3)

ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 9) filed
by plaintiff Aquanette Markey.

Defendants A.M.E. Services, Inc.

and/or A.M.E. Services of New Orleans, L.L.C. and ETI, Inc.
oppose the motion. The motion, set for hearing on September 12,
2012, is before the Court on the briefs without oral argument.
For the reasons that follow, the motion is DENIED.
I.

BACKGROUND
Plaintiff initiated this suit in state court against A.M.E.

Services, Inc. and/or A.M.E. Services of New Orleans, L.L.C. on
April 1, 2009. Plaintiff initially alleged that she was owed past
due wages, penalty wages, reasonable attorney’s fees, and cost
and expenses of litigation including interest. (Pet. ¶ V; Rec.
Doc. 1-1, at 2). In Plaintiff’s First Supplemental and Amending
Petition filed on January 4, 2012, Plaintiff joined ETI, Inc. as
a defendant. Plaintiff also alleged that Defendants failed to
provide required tax forms, continually misrepresented facts to
avoid judgments and obligations, and retained a convicted felon

employee. (Amended Pet. ¶¶ VI-IX; Rec. Doc. 1-1, at 8-9).
Plaintiff asserted that she was entitled to additional damages
for loss of economic opportunity, mental anguish, and fear. (Id.
¶ VIII; Rec. Doc. 1-1, at 9).
On June 20, 2012, Plaintiff filed her Third Supplemental and
Amending Petition. This was the first petition to expressly
invoke the federal Racketeer Influenced and Corrupt Organization
(“RICO”) statute. (Third Amended Pet. ¶ XIV; Rec. Doc. 1-1, at
16).
On July 11, 2012, Defendants removed the suit alleging
federal question jurisdiction under 28 U.S.C. § 1331. Defendants
asserted that the case became removable on June 20, 2012, with
the filing of the Third Supplemental and Amending Petition.
Plaintiff now moves to remand the case to state court. In
essence, Plaintiff argues that Defendants failed to remove the
case within the thirty day time period required by statute.
II.

DISCUSSION
Removal is proper if the district court has original

jurisdiction. 28 U.S.C. § 1441(a). The removing party must file a
notice of removal with the district court within thirty days
after the defendant receives a copy of the initial pleading. 28
U.S.C. § 1446(b)(1). If the case was not initially removable
based on the initial pleading, the defendant can remove thirty
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days after receiving a “copy of an amended pleading ... 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). In
order for a document to constitute “other paper” for the purposes
of 28 U.S.C. § 1446(b)(3), it must be a document that the
plaintiff voluntarily gives the defendant and entails notice of
the changed circumstances that invoke federal jurisdiction.
Fernando Garcia v. MVT Servs., Inc., 589 F. Supp. 2d 797, 803
(W.D. Tex. 2008)(citing S.W.S. Erectors v. Infax, Inc., 72 F.3d
489, 494 (W.D. Tex. 2008)).
The Fifth Circuit has recognized “other paper” to include
documents not filed in state court proceedings. See id.; see also
Chapman v. Powermatic, 969 F.2d 160, 163 (5th Cir. 1992)(stating
that an answer to an interrogatory constitutes “other paper”).
But the amended pleading or other paper must provide notice that
is “unequivocally clear and certain” to start the running of the
thirty day time limit for removal. Cole v. Knowledge Learning
Corp., No. 10-30546, 2011 WL 818151, at *7 (5th Cir. 2011)
(citing Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.
2002)). The Fifth Circuit in Bosky v. Kroger Texas, LP, stated
that:
[T]he information supporting removal in a copy of an
amended pleading, motion, order or other paper must be
“unequivocally clear and certain” to start the time limit
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running for a notice of removal under the second
paragraph of section 1446(b). This clearer threshold
promotes judicial economy. It should reduce “protective”
removals by defendants faced with an equivocal record. It
should also discourage removals before their factual
basis can be proven by a preponderance of the evidence
through a simple and short statement of the facts. In
short, a bright-line rule should create a fairer
environment for plaintiffs and defendants.
288 F.3d at 211.
The Court is not persuaded that Plaintiff satisfied the
“unequivocally clear and certain” standard in either the Original
Petition or First Supplemental and Amending Petition. Plaintiff
must provide more facts than simply that Defendants engaged in a
corrupt practice. Generally, to establish a RICO claim,
“plaintiff must allege specific facts that the defendant is
engaged in conduct of an enterprise through a pattern of
racketeering activity.” Castrillo v. Am. Home Mort. Servicing,
Inc., 670 F. Supp. 2d 516, 530 (E.D. La. 2009). In order to prove
a “pattern of racketeering activity,” a plaintiff must show that
two or more related offenses amount to a threat of continued
criminal activity. Id. In Plaintiff’s Original Petition and First
Supplemental and Amending Petition, none of the RICO elements are
explicitly referenced such that a federal RICO claim is
established or implied.
According to Plaintiff, Defendants received adequate notice
of the RICO claim in the Original Petition and First Supplemental
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and Amending Petition. In those petitions, Plaintiff provided
facts that Defendants may be involved in corrupt activities. But
merely pleading facts that may ultimately form the basis of a
RICO cause of action without clearly establishing a federal claim
does not amount to “unequivocally clear and certain” notice under
federal law for the purposes of removal, even if sufficient for a
state court petition.
Plaintiff also argues that Defendants received additional
notice of the RICO claim from the Opposition to the Exceptions of
No Cause of Action and Prescription filed on May 11, 2012. Though
an opposition to a motion may constitute “other paper” under 28
U.S.C. § 1446(b)(3), the state court judge dismissed this claim.
Therefore, Defendants did not have a federal claim to remove from
state court at that time. It was not until the filing of
Plaintiff’s Third Supplemental and Amending Petition that
Defendants had a federal RICO claim to remove.
In sum, the Court finds that Plaintiff’s attempt to assert a
federal claim in the Third Supplemental and Amending Petition
provided sufficient notice for removal. Because the Plaintiff
filed the Third Supplemental and Amending Petition on June 20,
2012, the Court holds that on July 11, 2012, Defendants filed for
removal within the thirty day time limit.
Accordingly;
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IT IS ORDERED that the Motion to Remand (Rec. Doc. 9) filed
by plaintiff Aquanette Markey should be and is hereby DENIED.

October 23, 2012

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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