King v. Park Hotels & Resorts Inc., et al

Filing 13

ORDER AND REASONS denying 9 Motion to Remand to State Court. Signed by Judge Wendy B Vitter on 2/5/2024. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GWENDOLYN KING

CIVIL ACTION

VERSUS

NO. 23-7139

PARK HOTELS & RESORTS, INC., ET AL.

SECTION: D (2)

ORDER AND REASONS
Before the Court is a Motion to Remand filed by the Plaintiff, Gwendolyn
King. 1

The Defendants, Park Hotel & Resorts, Inc. and Sedgwick Claims

Management Services, Inc., oppose the Motion. 2 After careful consideration of the
parties’ memoranda and the applicable law, the Court DENIES the Motion.
I.

FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Gwendolyn King alleges that on August 5, 2022 she tripped and fell

backwards when her suitcase wheel became stuck in the escalators located at the
Hilton New Orleans Riverside Hotel, owned and operated by Defendant Park Hotel
& Resorts, Inc. 3 On July 28, 2023, Plaintiff filed suit against the Defendants in the
Civil District Court for the Parish of Orleans, State of Louisiana claiming that the
negligence of the Defendants in failing to inspect and warn hotel guests of the
dangerous conditions of the hotel escalators caused her to suffer myriad emotional
and physical injuries including injuries to her left elbow, right knee, and lower back. 4
In her state court Petition, Plaintiff averred that the damages sought exceeded

R. Doc. 9.
R. Doc. 11.
3 See R. Doc. 1-1 at p. 3.
4 See id. at pp. 3–5.
1
2

$10,000 but claimed that she was “unsure at present whether her damages exceed
the minimal jurisdictional threshold required to maintain federal court jurisdiction.” 5
Plaintiff served Defendant Sedgwick Claims Management Services, Inc. with
a copy of her Petition on September 15, 2023 6 and served Defendant Park Hotel &
Resorts, Inc. a week later on September 22, 2023. 7 Both Defendants filed an Answer
and Dilatory Exception of Nonconformity and/or Vagueness in the state court
proceedings on October 26, 2023 and propounded Requests for Admission on the
Plaintiff on the same day. 8 Specifically, the Defendants requested the Plaintiff to
admit that the amount of damages sought exceeds $75,000, exclusive of costs and
interest. 9 Plaintiff was required under Louisiana law to respond to the Requests for
Admission within thirty days of service. 10

Plaintiff failed to so respond before

November 27, 2023. 11
The Defendants removed this action to this Court on December 1, 2023 on the
basis that Plaintiff’s failure to respond to the Request for Admission regarding
whether her claim exceeded $75,000 constitutes an “other paper” for purposes of
determining the timeliness of the removal. 12 In their Notice of Removal, Defendants
contended that because the removal took place within thirty days of when the

Id. at p. 6.
Id. at p. 12.
7 Id. at p. 10.
8 R. Doc. 11-2 & 11-3.
9 R. Doc. 11-3.
10 Id.; La. Code Civ. Proc. art. 1467(A).
11 R. Doc. 1 at ¶ 8.
12 Id.
5
6

deadline for Plaintiff to respond to the Request for Admission lapsed, their removal
was timely. 13
Plaintiff timely filed the instant Motion to Remand on December 28, 2023
arguing that the removal was procedurally defective because the Defendants did not
timely remove the action. 14 Plaintiff claims that the removal is untimely because the
Defendants were personally served on August 17, 2023 and did not remove this action
until December 4, 2023 15, more than thirty days after the Defendants received the
Plaintiff’s state court Petition. As such, the Plaintiff argues that this matter should
be remanded due to the untimeliness of the removal.
The Defendants filed a response in opposition to the Motion in which they
argue that the Motion should be denied because they timely removed the Plaintiff’s
state court Petition. 16 According to the Defendants, the basis for federal jurisdiction
did not become apparent until November 27, 2023 when Plaintiff was deemed to have
admitted that she seeks greater than $75,000 in damages by failing to timely respond
to the Defendants’ Request for Admission. 17 Because the Defendants removed the
action several days later on December 1, 2023, the Defendants argue, the removal
was timely.

Id.
R. Doc. 9.
15 The Plaintiff incorrectly states throughout their briefing that the Defendants removed this action
on December 4, 2023. The record demonstrates that this action was removed to this Court on
December 1, 2023. See R. Doc. 1. Plaintiff also incorrectly states that the defendants were served on
August 17, 2023. The record demonstrates that Sedgwick Claims Management Services, Inc. was
served on September 15, 2023 and Defendant Park Hotel & Resorts, Inc. was served on September 22,
2023. See R. Doc. 1-1 at pp. 10 and 12.
16 R. Doc. 11.
17 Id. at p. 5.
13
14

II.

LEGAL STANDARD
A defendant may remove “any civil action brought in a State court of which the

district courts of the United States have original jurisdiction.” 18 The removing party
bears the burden of proving federal diversity jurisdiction. 19 The removal statute is
strictly construed and any doubt as to the propriety of removal should be resolved in
favor of remand. 20 Remand is proper if at any time the court lacks subject matter
jurisdiction. 21 When original jurisdiction is based on diversity of citizenship, the
cause of action must be between “citizens of different states” and the amount in
controversy must exceed the “sum or value of $75,000, exclusive of interest and
costs.” 22
Even if the requirements of subject-matter jurisdiction are satisfied, the
removing party must meet certain procedural requirements. One such requirement
is that the notice of removal 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.” 23 However, “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

28 U.S.C. § 1441(a).
Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003).
20 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).
21 See 28 U.S.C. § 1447(c).
22 28 U.S.C. § 1332(a)–(a)(1). There is no dispute that the complete diversity requirement is satisfied
in this case.
23 28 U.S.C. § 1446(b)(1).
18
19

ascertained that the case is one which is or has become removable.” 24 Because this
procedural requirement and bar to removal does not implicate subject matter
jurisdiction—and is therefore waivable—a plaintiff must file a motion to remand
based on this defect within thirty days of the filing of the notice of removal under 28
U.S.C. § 1446(a). 25 Further, the Court may order the “payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal” when
issuing an order remanding a case. 26
III.

ANALYSIS
Plaintiff argues that the Notice of Removal in this case was untimely filed

because the Defendants did not remove this matter within thirty days of being served
with the Plaintiff’s state court Petition.

Although Plaintiff claims that the

Defendants were both “personally served” on August 17, 2023, Plaintiff provides no
support for this assertion.
assertion.

Moreover, the record evidence contradicts Plaintiff’s

The record reflects that Defendant Sedgwick Claims Management

Services, Inc. was served with a copy of the Plaintiff’s Petition on September 15, 2023
and Defendant Park Hotel & Resorts, Inc. was served a week later on September 22,
2023. 27 Nevertheless, it is undisputed that the Defendants did not remove this action
within thirty days of being served.
While a party normally must file a notice of removal within thirty days of being
served with a copy of the initial pleading setting forth the claim for relief, such is the

Id. § 1446(b)(3).
In re 1994 Exxon Chem. Fire, 558 F.3d at 392; 28 U.S.C. § 1447(c).
26 28 U.S.C. § 1447(c).
27 See R. Doc. 1-1 at pp. 10, 12.
24
25

case only where the initial pleading is itself removable, i.e., meets the requirements
for federal court jurisdiction. 28 However, if the initial pleading is not removable, a
party may file a notice of removal within thirty days of receipt 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.” 29 The Defendants rely upon this latter
rule to support the timeliness of their notice of removal. In that Notice, Defendants
assert: “Because this Notice of Removal is filed within 30 days of the deadline in
which plaintiff had to admit or deny the Requests for Admission, this Notice of
Removal is timely filed given that it is filed within thirty days of the October 26, 2023
deadline in which plaintiff had to admit or deny the Request.”30
Somewhat perplexingly, Plaintiff relies on 28 USC § 1446, the same
statute relied on by Defendants in its Notice of Removal, to argue that
Defendants’ Notice of Removal is untimely.31 Plaintiff (in bold, underlined, and
italicized) asserts that “[w]hen the initial pleading is not removable, a
defendant must file the Notice of Removal within 30 days of the defendant’s receipt
of a pleading or other paper from which it may first be ascertained that the case is
or has become removable,”32 correctly citing 28 U.S.C. § 1446(b)(3).33 For
reasons unknown, or perhaps for a lack of understanding, Plaintiff fails to
further address 28 U.S.C. § 1446(b)(3) in its briefing.

See 28 U.S.C. § 1446(b)(1).
Id. § 1446(b)(3).
30 R. Doc. 1. (citing 28 U.S.C. § 1446(b)(3)).
31 R. Doc. 9-1 at p. 3.
32 Id.
33 See id. at n.8.
28
29

Plaintiff’s initial state court Petition was not removable. In her Petition,
Plaintiff did not specify any amount of damages that she sustained as a result of her
alleged accident. Indeed, she stated that she “is unsure whether her damages exceed
the minimal jurisdictional threshold amount required to maintain federal court
jurisdiction.” 34 Nor was there any other information in the state court Petition
sufficient to demonstrate that the amount in controversy had been met. Because the
Petition did not specify an amount of damages, and because it is not “facially
apparent” from the Petition that the Plaintiff’s damages exceeded $75,000, there was
no basis for federal court jurisdiction at the time the Petition was filed and thus the
action was not removable at that time.
The Defendants contend that the action did not become removable until
Plaintiff was deemed to have admitted that she seeks greater than $75,000 in
damages by failing to respond to the Defendants’ Request for Admission. 35 In other
words, the Defendants claim that the failure to respond constitutes an “other paper”
from “which it may first be ascertained that the case is one which is or has become
removable.” 36 The Court agrees. Pursuant to Louisiana Code of Civil Procedure
article 1467(A), once a party is served with a request for admission, “[t]he matter is
admitted unless, within thirty days after service of the request, or within such shorter
or longer time as the court may allow, the party to whom the request is directed serves
upon the party requesting the admission a written answer or objection addressed to

R. Doc. 1-1 at p. 6.
See R. Doc. 11 at p. 5.
36 28 U.S.C. § 1446(b)(3).
34
35

the matter, signed by the party or by his attorney.” 37 In turn, an admission pursuant
to La. Code Civ. Proc. art. 1467 “qualifies as ‘other paper’ by the terms of 18 U.S.C. §
1446(c)(3)(A) and trigger[s] the 30–day removal clock.” 38 Plaintiff failed to respond
to the Defendants’ October 26, 2023 request for admission that her demand exceeded
$75,000. Accordingly, thirty days later, on November 27, 2023, the matter was
admitted. 39 Because the Defendants removed the case on December 1, 2023—within
thirty days of the case becoming removable—the Notice of Removal is timely. The
Court therefore denies Plaintiff’s Motion to Remand.
IV.

CONCLUSION
IT IS HEREBY ORDERED that the Motion to Remand 40 is DENIED.
New Orleans, Louisiana, February 5, 2024.
______________________________
WENDY B. VITTER
United States District Judge

La. Code Civ. Proc. art. 1467(A).
Gayden v. Winn-Dixie Montgomery, Inc., No. CIV. A. 13-6232, 2014 WL 433503, at *4 (E.D. La. Feb.
4, 2014) (Vance, J.); accord Dejean v. Vermont Mut. Ins. Co., No. CV 23-5022, 2023 WL 7103278, at *3
(E.D. La. Oct. 27, 2023) (Africk, J.).
39 See La. Code Civ. Proc. art. 1467(A); see also Gayden, 2014 WL 433503, at *4 (“When [the plaintiff]
failed to respond to defendant’s request for admission that the amount in controversy exceeded
$75,000, that statement was deemed admitted in accordance with La. Code Civ. Proc. art. 1467.”).
40 R. Doc. 9.
37
38