Fortenberry et al v. Prine et al
Filing
60
ORDER denying Plaintiffs' 28 Motion for Reconsideration or for Certification of Interlocutory Appeal. Signed by District Judge Keith Starrett on October 3, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ASHLEY FORTENBERRY, et al.
V.
PLAINTIFFS
CIVIL ACTION NO. 2:14-CV-56-KS-MTP
CHRIS E. PRINE, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Plaintiffs’ Motion for
Reconsideration or for Certification of Interlocutory Appeal [28].
A.
Background
The Court already provided the factual background of this case. Fortenberry v.
Prine, No. 2:14-CV-56-KS-MTP, 2014 U.S. Dist. LEXIS 90155, at *2-*4 (S.D. Miss. July
2, 2014).1 The Court denied Plaintiffs’ Motion to Remand [16]. First, it found that the
original complaint did not trigger the time period for removal because it did not
“affirmatively reveal[] on its face” that the amount in controversy exceeded the
jurisdictional limit. Id. at *7-*8 (citing Mumfrey v. CVS Pharm., Inc., 719 F.3d 392, 400
(5th Cir. 2013)). Next, the Court found that “other paper” did not trigger the time
period for removal because it did not provide “unequivocally clear and certain”
information supporting removal. Id. at *11-*15 (citing, e.g. Bosky v. Kroger Tex., LP,
288 F.3d 208, 211 (5th Cir. 2002)). The Court also found that Defendant Greater East
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Defendant noted in briefing that the Court previously incorrectly stated that
“Plaintiffs were on their way to a church choir event” at the time of the accident,
and that Chris Prine was killed in the accident. Id. at *2. To the extent these
factual statements were incorrect and/or disputed, the Court withdraws them.
Lampton Church, Inc. had been improperly joined, id. at *19, and that Plaintiffs’
claims against Defendant Chris Prine were a legal nullity. Id. at *19-*20.
Plaintiffs then filed a motion [28] seeking reconsideration of several aspects of
the Court’s decision, or certification of the decision for interlocutory appeal. The motion
is ripe for review.
B.
Reconsideration
Rule 54(b) provides that “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all of
the parties . . . may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” FED. R. CIV. P. 54(b). The rule
“authorizes a district court to reconsider and reverse its prior rulings on any
interlocutory order for any reason it deems sufficient.” United States v. Renda, 709
F.3d 472, 479 (5th Cir. 2013); see also Saqui v. Pride Cent. Am. LLC, 595 F.3d 206, 21011 (5th Cir. 2010).
1.
“Facially Apparent”
First, Plaintiffs argue that it was facially apparent from the original complaint
that the amount in controversy exceeded the jurisdictional minimum. The Court
already addressed this argument and rejects it for the same reasons previously stated.
See Fortenberry, 2014 U.S. Dist. LEXIS 90155 at *7-*8 (original complaint did not
“affirmatively reveal on its face” that the amount in controversy exceeded the
jurisdictional amount; “facially apparent” standard did not apply).
2.
Plaintiffs’ Discovery Responses – “Unequivocally Clear and Certain”
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Next, Plaintiffs argue that their discovery responses constituted “other paper”
from which it was “unequivocally clear and certain” that the amount in controversy
exceeded the jurisdictional minimum. The Court already addressed this argument and
rejects it for the same reasons previously stated. Id. at *12-*15 (Plaintiff’s discovery
responses indicated that it was probable she sought more than $75,000, but not that
it was “unequivocally clear and certain”).
3.
Defendants’ Discovery Responses – “Other Paper”
Finally, Plaintiffs argue that Defendants’ own discovery responses constituted
“other paper” from which it was “unequivocally clear and certain” that the amount in
controversy exceeded the jurisdictional minimum. Section 1446 provides that “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 . . . of . . . 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) (emphasis added). Therefore, for something to qualify as “other paper” that
renders a case removable, it “must result from the voluntary act of a plaintiff which
gives the defendant notice of the changed circumstances which now support federal
jurisdiction.” Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000); see
also S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). Neither “evidence
of the defendant” nor “an order of the court” will suffice. Gaitor v. Peninsular &
Occidental S.S. Co., 287 F.2d 252, 254 (5th Cir. 1961). Moreover, “a defendant’s
subjective knowledge cannot convert a case into a removable action.” S.W.S. Erectors,
72 F.3d at 494.
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Garcia v. MVT Servs., Inc., 589 F. Supp. 2d 797 (W.D. Tex. 2008), cited by
Plaintiffs, does not contradict these principles. There, the removing defendant
produced back to the plaintiffs a copy of a release agreement between the plaintiffs and
the resident defendant. Id. at 803. The district court held that the agreement was
“other paper” because it had been voluntarily executed and provided to the removing
defendant by the plaintiff. Id. at 804.
Here, Plaintiffs have not identified anything in Defendant’s discovery responses
[17-1, 17-2, 17-3, 17-4] which resulted “from the voluntary act of a plaintiff” and “gives
the defendant notice of the changed circumstances which now support federal
jurisdiction.” Addo, 230 F.3d at 762. Furthermore, even if the Court considered
Defendant’s discovery materials as “other paper,” they contain no more information
than Plaintiffs’ own discovery materials and, therefore, do not provide “unequivocally
clear and certain” information supporting removal. Bosky, 288 F.3d at 211.
C.
Interlocutory Appeal
Alternatively, Plaintiffs argue that the Court should certify the above questions
for interlocutory appeal. Section 1292(b) states in pertinent part:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order . . . .
28 U.S.C. § 1292(b). The Fifth Circuit strictly construes Section 1292(b). Ala. Labor
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Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972). Interlocutory appeals are only
granted in “exceptional cases.” United States v. Garner, 749 F.2d 281, 286 (5th Cir.
1985). “They are permitted only when there is a substantial difference of opinion about
a controlling question of law and the resolution of that question will materially
advance, not retard, ultimate termination of the litigation.” Clark-Dietz & Assocs.Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 69 (5th Cir. 1983).
There is no substantial difference of opinion here. The “facially apparent”
standard does not apply to “timeliness dispute” cases, like the present one. Mumfrey,
719 F.3d at 400. When determining whether the initial complaint started the clock on
a defendant’s right to remove, the Court applies the “affirmatively reveals on its face”
standard. Id. It is undisputed that the initial complaint does not “affirmatively reveal
on its face” that the amount in controversy exceeds $75,000. Plaintiff has cited nothing
to dispute the Court’s analysis in this regard.
Likewise, there is no substantial difference of opinion as to whether the
discovery responses triggered the time for removal, as they do not provide
“unequivocally clear and certain” information supporting removal. Bosky, 288 F.3d at
211. As the Court previously stated, the discovery responses may indicate that it is
likely or even probable that the amount in controversy exceeds $75,000, but they do not
make it “unequivocally clear and certain.” Id. “An uncertainty or contingency
concerning the amount of damages” does not constitute an “‘unequivocally clear and
certain’ answer that the amount in controversy was in excess of $75,000.00.” Stampley
v. Fred’s Dollar Store of Miss., No. 5:07-CV-153-DCB-JMR, 2008 U.S. Dist. LEXIS
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115280, at *7 (S.D. Miss. Feb. 19, 2008).
The goal of Fifth Circuit jurisprudence concerning timeliness disputes is to
“promote efficiency by preventing courts from expending copious time determining
what a defendant should have known or have been able to ascertain at the time of the
initial pleading.” Mumfrey, 719 F.3d at 399. The Fifth Circuit also wants “to avoid
encouraging defendants to remove cases prematurely for fear of accidentally letting the
thirty-day window to federal court close when it is unclear that the initial pleading
satisfies the amount in controversy.” Id. The result is a “bright line rule requiring the
plaintiff, if he wishes the thirty-day time period to run from the defendant’s receipt of
the initial pleading, to place in the initial pleading a specific allegation that damages
are in excess of the federal jurisdictional amount.” Id. (emphasis original). Likewise, the
“unequivocally clear and certain” standard applied to “other paper” is intended to
“reduce protective removals by defendants faced with an equivocal record.” Bosky, 288
F.3d 211.
These bright-line rules “create a fairer environment for plaintiffs and
defendants.” Id. Both standards – “affirmatively reveals on its face,” and
“unequivocally clear and certain” – merely require candor about the amount in
controversy.
D.
Conclusion
For the reasons stated above, the Court denies Plaintiffs’ Motion for
Reconsideration or for Certification of Interlocutory Appeal [28].
SO ORDERED AND ADJUDGED this 3rd day of October, 2014.
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s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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