Pettiford v. Graphic Packaging International Inc

Filing 12

MEMORANDUM RULING denying 6 Motion to Remand and associated request for an award of costs and expenses including reasonable attorney's fees. Signed by Magistrate Judge Karen L Hayes on 1/17/13. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
NATHANIEL THOMAS PETTIFORD,
JR.

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CIVIL ACTION NO. 12-2883

VERSUS

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JUDGE ROBERT G. JAMES

GRAPHIC PACKAGING
INTERNATIONAL, INC.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM RULING
Before the undersigned Magistrate Judge, on reference from the District Court, is a
Motion to Remand [doc. # 6] filed by Plaintiff Nathaniel Thomas Pettiford (“Pettiford”).1
Defendant Graphic Packaging International, Inc. opposes the motion [doc. # 8]. For reasons
stated below, the Motion to Remand [doc. # 6], together with the associated request for costs,
expenses, and/or fees, are DENIED.
Background
Nathaniel Thomas Pettiford filed the above-captioned suit on April 19, 2012, against
Graphic Packaging International, Inc. (“GPI”) in the Fourth Judicial District Court for the Parish
of Ouachita, State of Louisiana. Pettiford contends that his employer, GPI, is liable for injuries
that he sustained at work on or about May 25, 2011, when “the flooring gave way causing
[Pettiford] to fall.” [doc. # 1-4, P. 2].
On November 13, 2012, GPI removed the case to federal court on the basis of diversity

1

As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of
any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
ruling is issued under the authority thereof, and in accordance with the standing order of this court.
Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).

jurisdiction, 28 U.S.C. § 1332. See [doc. # 1]. On December 12, 2012, Plaintiff filed the instant
Motion to Remand [doc. # 6], contending that Defendant failed to timely remove the matter in
accordance with 28 U.S.C. § 1446(b). Plaintiff also seeks an award of costs and expenses,
including reasonable attorney’s fees, which they incurred as a result of the improvident removal.
GPI opposes the Motion [doc. # 8]. Briefing is now complete; the matter is before the court.
Law and Analysis
I.

Removal Principles
A defendant may remove an action from state court to federal court, provided the action is

one in which the federal court may exercise original jurisdiction. Manguno v. Prudential
Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The
removing defendant bears the burden of establishing federal subject matter jurisdiction and
ensuring compliance with the procedural requirements of removal. Id. The removal statutes are
strictly construed in favor of remand. Id.
In this case, Defendant invoked the Court’s subject matter jurisdiction via diversity,
which requires complete diversity of citizenship between Plaintiff and Defendant, and an amount
in controversy greater than $75,000. 28 U.S.C. § 1332(a). Plaintiff does not contest the Court’s
subject matter jurisdiction. Although the parties cannot confer federal subject matter jurisdiction
via consent,2 the record establishes that the parties are completely diverse and that the amount in
controversy exceeds $75,000.3 Thus, the sole issue is whether Defendant complied with the
2

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702,
102 S.Ct. 2099, 2104 (1982).
3

Plaintiff is a Florida domiciliary. [doc. # 1, P. 4]. Defendant is a citizen of Delaware and
Georgia. Id. Furthermore, medical records demonstrate that the amount in controversy exceeds the
2

procedural requirements for removal.
The removal process is fraught with procedural pitfalls for the unwary defendant
including, but not limited to, the temporal filing limitations at issue here. Under the removal
statutes, a defendant must file a notice of removal: 1) within 30 days after the defendant
receives, through service or otherwise, a copy of the initial pleading or summons; or 2) if the case
“stated by the initial pleading is not removable,” within 30 days from defendant’s receipt “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) (commonly
referred to as first and second paragraphs of § 1446(b)).4
Plaintiff does not contend that it was facially apparent from the original petition that the
amount in controversy exceeded $75,000. See e.g., [doc. # 6, P. 1]. Instead, Plaintiff argues that
Defendant did not remove the case within 30 days after receipt of an “other paper” from which
Defendant should have ascertained removability. See [doc. # 6-1, P. 2]. If substantiated, this
error would constitute a procedural defect in the removal process, compelling remand. See In re
Shell Oil Co., 932 F.2d 1518, 1522 (5th Cir. 1991) (failure to timely remove under § 1446(b) is a
procedural defect in removal process).
II.

“Other Paper” Removal
In Bosky v. Kroger Texas, LP, the Fifth Circuit established a “bright line” rule for the 30-

jurisdictional threshold of $75,000. See [doc. # 8, P. 3].
4

On December 7, 2011, Congress amended § 1446(b). See Pub.L 112-63. According to the
law, the changes apply to any action or prosecution commenced on or after the law’s effective date,
which was 30 days after enactment. (Pub.L 112-63, Title I, § 105). For purposes of the law, a case
that was removed to federal court is deemed to commence on the date that it was commenced in state
court. Id. Thus, the amendment does not apply to this matter that was commenced in July 2011.
3

day removal period under the second paragraph of § 1446(b):
the 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
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.
Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002) (footnote omitted).
This begs the question, what must be included in an “other paper” to make it “unequivocally
clear and certain” that the amount in controversy exceeds the jurisdictional threshold?
Despite some equivocation of its own, Bosky managed to provide some guidance. The
court explained that its removal standard did not conflict with other cases such as Gebbia v. WalMart Stores, Inc.,5 Luckett v. Delta Airlines, Inc.,6 and Marcel v. Pool Co.,7 because those cases
were not relevant to removals effected under the second paragraph of § 1446(b). Bosky, 288 F.3d
at 212, n.20 (citations omitted). Bosky then cited other Fifth Circuit cases such as S.W.S.
Erectors, Inc. v. Infax, Inc., and Wilson v. Belin, which it deemed to be consistent with its
“unequivocally clear and certain” standard. Bosky, supra (citing S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 491-92 (5th Cir. 1996); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir.1994)).8

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233 F.3d 880, 882-883 (5th Cir. 2000).

6

171 F.3d 295, 298 (5th Cir. 1999).

7

5 F.3d 81, 82-85 (5th Cir.1993).

8

Bosky also cited Marcel v. Pool. This citation to Marcel is curious however, because two
footnotes earlier, Bosky cited Marcel as a case that was not relevant to removal under the second
paragraph of § 1446(b).
4

In both S.W.S. Erectors and Wilson, the defendants’ removal was premised upon written
evidence obtained from plaintiffs that acknowledged specific damage figures that exceeded the
federal jurisdictional minimum. Id.9
Although not discussed in Bosky itself, it is instructive that the “other paper[s]” that
defendants relied upon to remove the case were documents that revealed actual medical expenses
in excess of $75,000. Bosky v. Kroger, Appellee Brief, 2001 WL 34127780. Even more telling
is that, more than 30 days before removal, the defendant obtained discovery from plaintiff stating
that she would “not seek more than $500,000.00 for all of her damages and may seek less than
this amount . . .,” and a written statement that plaintiff’s medical damages were around $50,000.
Id. Bosky effectively held that the foregoing evidence was insufficient to commence the 30-day
removal period. Rather, the 30-day removal clock was not triggered until defendant obtained
written proof of actual damages that exceeded the jurisdictional minimum.10
III.

GPI Timely Removed this Matter.
Plaintiff emphasizes that Defendant’s “lack of due diligence” solely caused the deadline

to file the notice of removal to lapse. [doc. # 11, P. 1]. Specifically, Plaintiff points to a state of
Georgia workers compensation proceeding, which “had been filed and the matter settled by the
Plaintiff before present counsel had been hired for these proceedings.” Id. Plaintiff argues that

9

For a more detailed discussion of Bosky, and a discussion of the timeliness of removal
under the first paragraph of § 1446(b), see Gilbreath v. Averitt Express, Inc., Civil Action No. 091922, 2010 WL 1643786 (W.D. La. Mar. 10, 2010).
10

One of the unintended side effects of Bosky, is that a defendant may be able to establish
by a preponderance of the evidence that the amount in controversy exceeds the requisite
jurisdictional minimum, even though the pleadings and “other papers” do not suffice to trigger the
§ 1446(b) removal windows.
5

Defendant was aware of this workers compensation claim, and furthermore, the settlement
information was obtainable by Defendant.
In contrast, Defendant stresses that it was not until October 30, 2012, when “counsel for
Defendant began receiving medical records from Plaintiff’s healthcare providers, evidencing
medical conditions that have led to general damage awards in excess of $75,000.00.” [doc. # 8,
P. 3]. Additionally, Defendant responds to Plaintiff’s argument regarding the Georgia workers
compensation proceeding by distinguishing Plaintiff’s “right to recover in tort” in the abovecaptioned case and “the damages recoverable . . . in workers compensation.” Id. at 4. Defendant
points out that it is “[P]laintiff’s burden to prove his damages . . . not the burden of . . .
[D]efendant.” Id.
Under Bosky, it is manifest that October 30, 2012, marks the earliest date that GPI was in
possession of “unequivocally clear and certain” information from Plaintiff, comprised of specific
damage estimates that exceeded the jurisdictional minimum, sufficient to trigger the 30-day
removal clock under the second paragraph of § 1446(b).11 Prior to that time, there is no
indication that Plaintiff’s discovery responses or correspondence contained specific damage
estimates in excess of the jurisdictional minimum. Plaintiff’s argument that Defendant had
access to the necessary information to establish the amount in controversy as a result of
settlement in the Georgia workers compensation proceeding is misplaced. Defendant is not
subject to a due diligence requirement for determining removability. See Bosky, supra (citations
omitted); see also Powermatic, supra (refusing to subject a defendant to a due diligence

11

A post-complaint demand letter constitutes an “other paper” under § 1446(b). Addo v.
Globe Life and Acc. Ins. Co., 230 F.3d 759, 761-762 (5th Cir. 2000).
6

requirement because doing so“would require courts to expend needlessly their resources . . . to
determine what the defendant knew at the time it received the initial pleading and what the
defendant would have known had it exercised due diligence”). Moreover, Defendant’s
subjective knowledge cannot convert a case into a removable action. Id.
Conclusion
For the above-assigned reasons, the undersigned finds that the 30-day removal clock
under the second paragraph of § 1446(b) was first triggered on, or about October 30, 2012 and
that Defendant timely removed the case to federal court within 30 days thereafter. 28 U.S.C. §
1446(b). Accordingly,
Plaintiff’s Motion to Remand and associated request for an award of costs and expenses,
including reasonable attorney’s fees [doc. # 6], are hereby DENIED.
THUS DONE AND SIGNED in chambers, this 17th day of January 2013, in Monroe,
Louisiana.

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