Saacks v. Target Corporation, et al

Filing 20

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 5 Motion to Remand is GRANTED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/12/2017. (jls) (Additional attachment(s) added on 9/12/2017: # 1 Remand Letter) (jls).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIM SAACKS

CIVIL ACTION

VERSUS

NO. 17-5751

TARGET CORPORATION, ET AL.

SECTION “B”(4)

ORDER AND REASONS

Before the Court is Plaintiff Kim Saacks’ “Motion to Remand”
(Rec. Doc. 5), “Target Corporation’s Memorandum in Opposition to
Plaintiff’s Motion to Remand” (Rec. Doc. 12, and “Plaintiff’s Reply
Memorandum in Support of Plaintiff’s Motion to Remand” (Rec. Doc.
16). For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to Remand is GRANTED.
FACTS AND PROCEDURAL HISTORY
Plaintiff

Kim

Saacks

alleges

that

she

suffered

personal

injuries as a result of a slip and fall accident at a Target store
located

in

Metairie,

Louisiana

(Rec.

Doc.

1-1).

Plaintiff

originally filed suit in the 24th Judicial District Court for the
Parish of Jefferson, State of Louisiana, against two defendants:
Target Corporation and Richard’s Clearview, LLC (Rec. Doc. 1-1).
Diversity jurisdiction did not exist at this stage in the 2009
filed

proceedings

because

even

though

Target

is

citizen

of

Minnesota, both Plaintiff and Defendant Richard’s Clearview, LLC
are citizens of Louisiana (Rec. Doc. 1-1). In November 2014,

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Plaintiff settled and dismissed all of her claims against the nondiverse Defendant Richard’s Clearview, LLC (Rec. Doc. 1-1).
Target concedes that it was not able to seek removal to
federal court because more than one year had lapsed since the
initial action was filed. 28 U.S.C. § 1446. In May 2017, Plaintiff
then filed her Second Supplemental and Amending Petition for
damages, wherein she named ACE American Insurance Company (“ACE”)
as a Defendant (Rec. Doc. 1-1). Defendant ACE is a citizen of
Pennsylvania (Rec. Doc. 1). Given that there was now complete
diversity and all other requirements for jurisdiction were met,
Defendant ACE—with Target’s consent—removed the matter to the
Eastern District of Louisiana (Rec. Doc. 1-5). Plaintiff proceeded
to file a “Notice of Voluntary Dismissal of Defendant Ace American
Insurance Company pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i)” (Rec. Doc. 3).
LEGAL AND FACTUAL FINDINGS
A district court must remand a case to state court if “at any
time before final judgement it appears that the district court
lacks subject matter jurisdiction.” 28 U.S.C. 1447(c); Preston v.
Tenet Healthsys. Mem’l Med. Ctr., Inc., 485 F.3d 804, 813 n.3 (5th
Cir. 2007). The burden of establishing that federal jurisdiction
exists in a case “rests on the party seeking the federal forum.”
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

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The removal statute is to be strictly construed. Gasch v. Hartford
Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). Any
“doubts regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction.” Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir. 2000) (emphasis added). In order to
determine whether jurisdiction is present, a court must “consider
the claims in the state court petition as they existed at the time
of removal.” Maguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002).
Pursuant to 28 U.S.C. § 1332(a)(1), federal district courts
have “original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between citizens of different States.”
Plaintiff does not contend that Defendant Ace’s removal was
originally improper. Plaintiff argues the act of dismissing claims
against the removing Defendant ACE divests this court of diversity
jurisdiction.
Defendant correctly cites to a “well-settled principle that
once a court has diversity jurisdiction, subsequent developments
do not divest it of jurisdiction.” Rivers v. Chalmette Med. Ctr.,
Inc., 805 F. Supp. 2d 291, 295 (E.D. La. Aug. 2, 2011).
There are, however, exceptions to that principle notably
where a case becomes moot in the course of the litigation. See
Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct.
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447, 121 L.Ed.2d 313 (1992); Walters v. Edgar, 163 F.3d 430, 432
(7th Cir.1998). Or, if the plaintiff amends away jurisdiction in
a subsequent pleading, the case must be dismissed. Rockwell Int'l
Corp. v. United States, 549 U.S. 457, 473–74, 127 S.Ct. 1397, 167
L.Ed.2d 190 (2007). And likewise if after the case is filed it is
discovered that there was no jurisdiction at the outset, id. at
473, 127 S.Ct. 1397—not that this is really an exception to the
principle that jurisdiction, once it attaches, sticks; it is a
case in which there never was federal jurisdiction. Cunningham
Charter Corp. v. Learjet, Inc., 592 F.3d 805, 807 (7th Cir. 2010)
Defendant Target argues that the original removal here was
proper and diversity jurisdiction vested upon the notice of removal
filed by Defendant Ace. However, Plaintiff’s voluntary dismissal
of that removing Defendant prior to any answer from that Defendant
placed Plaintiff in the same position as if the claims against
that Defendant had never been filed, thus negating the basis for
removal. Maturin v. Commerce & Indus. Ins. Co., No. 614-CV-00603,
2014 WL 2567150 (W.D. La. June 6, 2014)(citing Harvey Specialty &
Supply, Inc. v. Anson Flowline Equip. Inc., 434 F.3d 320, 322–24
(5th

Cir.2005)).

Moreover,

as

noted

earlier,

the

non-moving

Defendant Target concedes that the one-year limit of § 1446
prevented it from seeking removal in an otherwise removable case
based on diversity jurisdiction. Rather, after foregoing its right
to timely seek removal Target now seeks in opposition to rely upon
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the removal notice timely filed by the now dismissed Defendant
Ace.

There is no showing or claim of bad faith or other reason

that prevented Target from timely removing this action. It chose
to litigate this case in state court for eight (8) years without
ever seeking removal to federal court and over two and a half (2
½ ) years after a clear basis existed to seek removal. Under all
of the above factual circumstances and principles of law, Target’s
untimely attempt to litigate in federal court is procedurally and
substantively barred.
We are mindful that the one-year procedural bar to removal is
waivable if, among other reasons, there is convincing evidence of
manipulation by the Plaintiff. Plaintiff’s counsel’s voluntary
dismissal without prejudice of the removing Defendant, Ace, soon
after

removal

appears

questionable.

However,

Target

has

not

asserted waiver defenses based on bad faith or manipulation by
Plaintiff’s

counsel.

Removal

statutes

are

construed

strictly

against removal and for remand, especially as here, where there is
doubt or ambiguity about the propriety of removal.

Gasch v.

Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).

New Orleans, Louisiana, this 12th day of September, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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