Allen v. Bulk Logistics, Inc. et al

Filing 14

ORDER denying #6 Motion to Remand to State Court Signed by District Judge Keith Starrett on 9/10/2020 (lm)

Case 2:20-cv-00129-KS-MTP Document 14 Filed 09/10/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

DEQUAN ALLEN

PLAINTIFF

V.

CIVIL ACTION NO. 2:20-cv-129-KS-MTP

BULK LOGISTICS, INC. and
TIMOTHY WHITFIELD

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause came before the Court on the Motion to Remand [6] filed by Plaintiff, Dequan
Allen. The Defendants have responded [10], [11], and Plaintiff filed a reply [13]. Having
reviewed the parties’ submissions and the relevant legal authorities, and otherwise being duly
advised in the premises, the Court finds the Motion to Remand should be denied.
I. BACKGROUND
Plaintiff filed his Complaint in state court on May 12, 2020, alleging negligence against
the Defendants, which arose from an automobile accident that occurred in October 2019.
Plaintiff was rear-ended and alleged that he suffered personal injuries, including, but not limited
to, “whiplash and soft tissue injuries to his body, and general overall soreness and stiffness.” [12] at ¶ 8. Plaintiff alleged that he required emergency treatment and suffered from present and
future pain and suffering and may require future medical care. Id. Plaintiff also claims a loss of
benefits and that his vehicle was a total loss. Id. at ¶¶ 9, 10. Plaintiff’s Complaint did not seek a
specific dollar amount of damages, nor did it contain any statement regarding a jurisdictional
amount of damages.
Bulk Logistics, Inc. was served on May 18, 2020, and Defendant Whitfield was served on
May 28, 2020. [3] at p. 13. No notice of removal was filed within thirty days of service on either

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Defendant. On June 12, 2020, there was an email exchange, wherein Plaintiff’s counsel
conveyed that Plaintiff wanted “at least $100,000 in his pocket” to resolve the case. [10-1]. On
July 13, 2020, Defendants filed their Notice of Removal based on diversity jurisdiction [1]. On
August 11, 2020, Plaintiff filed this motion seeking remand.
In his motion, Plaintiff does not dispute that the parties are diverse or that he seeks over
$75,000 in damages. He contends, however, that the amount in controversy was apparent from
the face of the Complaint filed on May 12, 2020 and that, therefore, the case is due to be
remanded since the July 13, 2020 removal was not timely filed within the thirty days required by
28 U.S.C. 1446(b)(1). Defendants argue that the amount in controversy was not apparent from
the face of the Complaint and that it was not until Defendants received the post-Complaint
demand of at least $100,000 on June 12, 2020 that they became aware that the case was
removable; therefore, the July 13, 2020 Notice of Removal was timely. As such, the sole issue
for resolution is whether the Notice of Removal was timely.
II. DISCUSSION
With regard to timing, the removal statute states, in relevant part, as follows:
The notice of removal of a civil action or proceeding shall be filed within thirty
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, or within thirty days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required
to be served on the defendant, whatever period is shorter. . . .
[i]f the case stated by the initial pleading is not removable, a notice of removal
may be filed within thirty 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 ascertained that the case is one which is or has become
removable.
28 U.S.C. § 1446(b)(1), (3).

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Stated simply, “if the initial pleading sets forth a claim that triggers the removal clock,
the defendant must file notice of removal within thirty days of receiving it. If the initial pleading
did not trigger the thirty-day removal clock, a notice of removal must be filed within thirty days
of the defendant’s receipt of a document from which it may ascertain that the case is, or has
become, removable.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397, 398 (5th Cir. 2013).
Plaintiff maintains that his original Complaint was removable. Although he did not demand a
specific dollar amount or any sort of minimum or maximum recovery sought, he asserts that it
was nevertheless clear from the damages alleged that the amount in controversy exceeded
$75,000. The Court disagrees because this is not the test in the Fifth Circuit in a “timeliness
dispute.”
A. Legal Standard
The Fifth Circuit has recognized two types of removal disputes—“amount disputes” and
“timeliness disputes.” Mumfrey, 719 F.3d at 398. “Amount dispute” cases are those where a
defendant removes a case within thirty days of receiving a pleading, but before the amount in
controversy is clearly established—and the plaintiff moves to remand, objecting that the amount
in controversy has not been met. Id. In that situation, the defendant must prove by a
preponderance of the evidence that the amount-in-controversy requirement is satisfied and can
do so where the jurisdictionally required amount in controversy is “facially apparent,” albeit not
expressly stated. Id. at 398, 400.
A “timeliness dispute” occurs when the defendant does not remove during the initial
thirty-days after receiving the initial pleading, but rather removes under § 1446(b)(3) within
thirty days of receiving some amended pleading or “other paper.” Mumfrey, 719 F.3d at 398. In
this type of dispute, the plaintiff objects, arguing that it was clear from the initial pleading that

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the case was removable, which makes the defendant’s removal untimely. Id. The type of dispute
is important because different standards apply to each. Id.
Regarding timeliness disputes, the Fifth Circuit has held that the initial thirty-day
removal period under § 1446(b)(1) “starts to run from defendant’s receipt of the initial pleading
only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in
excess of the minimum jurisdictional amount of the federal court.” Chapman v. Powermatic,
Inc., 969 F.2d 160, 163 (5th Cir. 1992). Such a rule, the Chapman court held, “promotes
certainty and judicial efficiency by not requiring courts to inquire into what a particular
defendant may or may not subjectively know.” Id.
The plaintiff in Chapman, citing a case from the Eastern District of Michigan, had urged
the Court to adopt a rule that when a complaint contains an indeterminate amount of damages but
the defendant subjectively knows, or in the exercise of due diligence should have known, that the
amount in controversy exceeds the jurisdictional limit of the court, the defendant must remove
the case within thirty days of its receipt of the initial pleading. 969 F.2d at 162. The court flatly
rejected such a rule, explaining that such a rule
would needlessly inject uncertainty into a court's inquiry as to whether a
defendant has timely removed a case, and as a result would require courts to
expend needlessly their resources trying 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, [such a] rule . . . would encourage
defendants to remove prematurely cases in which the initial pleading does not
affirmatively reveal that the amount in controversy is in excess of [$75,000] so as
to be sure that they do not accidentally waive their right to have the case tried in a
federal court. We believe the better policy is to focus the parties’ and the court’s
attention on what the initial pleading sets forth, by adopting 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. at 163 (emphasis added); see also Mumfrey, 719 F.3d at 399 (affirming the viability of

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Chapman’s “bright line” rule); Bosky v. Kroger Tex., LP, 288 F.3d 208, 210 (5th Cir. 2002) (also
affirming Chapman’s “bright line” rule). 1
B. Analysis
Unfortunately, neither of the parties have addressed the fact that this is a timeliness
dispute and that the standard set forth in Chapman, and affirmed in Mumfrey, controls in this
case. In his Complaint, Plaintiff did not affirmatively state a precise amount of damages sought,
nor did he affirmatively allege that he was seeking more than $75,000. Plaintiff argues that the
“Defendants were on notice that the amount in controversy exceeded the jurisdictional
requirement ($75,000) due to the nature of the accident including the severity of Plaintiff’s
mangled property damage, accident photographs, injuries sustained and damages alleged in the
Complaint.” [7] at p. 2. However, Plaintiff fails to acknowledge the holding in Chapman and
how the court “specifically declined to adopt a rule which would expect defendants to
‘ascertain[] from the circumstance[s] and the initial pleading that the [plaintiff] was seeking
damages in excess of the minimum jurisdictional amount.’” Mumfrey, 719 F.3d at 399 (quoting
Chapman, 969 F.2d at 163).
Plaintiff argues that his listing of damages made it “facially apparent” that the amount in
controversy exceeded $75,000, which then triggered the removal clock upon receipt of the
pleading. However, the application of the “facially apparent” test to timeliness cases was

1
The court in Mumfrey, in reaffirming Chapman, examines the Bosky case, explaining why the statement in Bosky,
that unspecified damages amounts when combined with other unspecified damages claims can provide sufficient
notice that an action is removable, is simply incorrect because Bosky cited two “amount dispute” cases in support of
its statement, neither of which dealt with triggering the removal clock. 719 F.3d 392, 399-400.

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specifically rejected by the Fifth Circuit in Mumfrey, 2 and thus, this Court declines to conduct
such analysis. 3 Under Chapman’s bright line rule, what must appear on the face of the complaint
is a specific allegation that conveys that the damages exceed $75,000 in order to trigger the
removal clock upon receipt of the pleading. Plaintiff is correct that he is not required to plead an
actual dollar amount in his complaint, but as the Fifth Circuit explained in Chapman and
Mumfrey, if a plaintiff wishes to trigger the removal clock from the date of service of the
Complaint, while there need not be a specific dollar amount, there needs to be some sort of
allegation that the damages exceed the jurisdictional limit. For example, Plaintiff could have
simply pled that he seeks “not less than $100,000,” as the June 12, 2020 email states.
Because Plaintiff’s original Complaint in this case does not contain a specific allegation
that damages are in excess of the federal jurisdictional amount, the case was not removable, and
the removal clock was not triggered until Defendants received a copy of an “amended pleading,
motion, order, or other paper from which” it was first ascertainable that the case was removable.
See Mumfrey, 719 F.3d at 400; Self v. Hayes, No. 3:16-cv-535, 2016 WL 9414141 at *3 (S.D.
Miss. Aug. 4, 2016). The Defendants received such a document in the email sent on June 12,
2020, wherein counsel indicated that Plaintiff “wants at least $100k in his pocket.” [10-1].
Plaintiff does not dispute that the email constitutes a valid “other paper,” and it is well

2

See Mumfrey, 719 F.3d at 400. To the extent this Court has previously utilized the “facially apparent” test in
timeliness cases, the Court will refrain from making that legal oversight in the future. For example, in Calhoun v.
Group Contractors, LLC, this Court acknowledged Chapman for the fact that the time for removal begins to run
when a “pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum
jurisdictional amount of the federal court,” but it did not utilize the “bright line rule.” 2:12-cv-70, 2012 WL 2327704
at *2 (S.D. Miss. June 19, 2010) Rather, this Court found that the allegations did not make it facially apparent that
the damages exceeded $75,000. Id. Contrary to Plaintiff’s protestation that this Court’s decision in Calhoun was
wrong and would have been reversed on appeal, [13] at p. 3, this Court did reach the right result, just not under the
proper standard. Granted, it was decided prior to the clarification and affirmation of the bright line rule in Mumfrey.
3 The Court acknowledges that Plaintiff cites a number of district court cases from Texas that were decided prior to
Mumfrey. For example, Plaintiff cites Cordova v. Fleet Source Transportation Services, Inc., No. C-06-349, 2006
WL 2706770 (S.D. Tex. Sept. 18, 2006). [7] at p. 5. While Cordova is a “timeliness case,” the Court finds that the
Texas court failed to recognize the distinction between timeliness and amount disputes and did not adequately rely
on Chapman. The Court declines to spend time and energy distinguishing Texas district court cases when the Fifth
Circuit law is clear on timeliness cases.

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established that a post-complaint settlement demand or offer is an “other paper” that can support
removal. See Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 761-762 (5th Cir. 2000).
Having received such “other paper” on June 12, 2020, the Notice of Removal filed on July 13,
2020 was timely. 4
Finally, Plaintiff argues that because the Defendants received the email within the
original thirty-day window under 1446(b)(1), Defendants should be barred from removing the
case because they sat on their rights and could have removed the case within that window and
avoided remand altogether. Plaintiff has cited no case law for such a proposition. In addition,
such a ruling not only would be illogical under a plain reading of the removal statute but also
would render §1446(b)(3) moot if any amended pleading or other paper was received during the
initial thirty-day deadline. The statute is clear: if the initial Complaint was not removable, a new
thirty-day period of removability is initiated upon receipt of a document “from which it may first
be ascertained that the case is one which is or has become removable.” 42 U.S.C. §1446(b)(3);
Mumfrey, 719 F.3d at 399. This second period of removability begins to run regardless of when
the receipt of the document occurs, whether it be on the fourth day or the fourth month after
service of the Complaint. Because the Complaint in this case was not initially removable, the
second removal clock was triggered upon receipt of the email regardless of the fact that it was
received within thirty-days of service of the Complaint.
III. CONCLUSION
Under the standard set forth in Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir.
1992), Plaintiff’s Complaint was not initially removable. Defendants’ Notice of Removal, filed

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The thirtieth day fell on a Sunday; thus, the deadline became Monday, July 13, 2020. See Fed. R. Civ. P.

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after receipt of an email verifying that the damages will exceed the threshold federal
jurisdictional amount, was timely. Consequently, Plaintiff’s Motion to Remand is DENIED.
SO ORDERED AND ADJUDGED this 10th day of September 2020.

/s/ Keith Starrett __________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

6(a)(1)(C).

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