Davila v. Alcoa Inc.

Filing 15

MEMORANDUM AND ORDER DENIED 7 MOTION to Remand (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
ANTHONY DAVILA, et al.,
Plaintiffs,
v.
ALCOA WORLD ALUMINA, LLC,
Defendant.

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CIVIL ACTION NO. V-14-0051

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Remand [Doc. # 7] filed by
Plaintiffs Anthony and Michelle Davila, to which Defendant Alcoa World Alumina,
LLC (“Alcoa”) filed a Response [Doc. # 9]. Plaintiffs neither filed a reply nor
requested additional time to do so. Having reviewed the full record and applicable
legal authorities, the Court denies the Motion to Remand.
I.

BACKGROUND
Plaintiff Anthony Davila was working on a tank owned by Alcoa when the tank

exploded, striking and severely burning Davila. See Original Petition, Exh. 3 to
Notice of Removal [Doc. # 1]. Plaintiff filed suit in Texas state court seeking to
recover damages for past and future medical expenses, mental anguish, pecuniary loss,
and loss of wages. See id. Additionally, Plaintiff sought to recover exemplary
damages from Alcoa. See id. Plaintiff did not, however, state the amount of damages

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he was seeking.1 Alcoa was served on January 15, 2014. See Return of Service, Exh.
4 to Notice of Removal.
Plaintiff later filed a First Amended Petition, in which his wife joined as a
plaintiff to seek recovery of damages for past and future loss of society and/or
consortium, mental anguish, and loss of household services. See First Amended
Petition, Exh. 6 to Notice of Removal. Again, Plaintiffs did not state the amount of
damages they were seeking. Alcoa was served with the First Amended Petition on
March 27, 2014. See id.
On July 8, 2014, Plaintiffs sent a demand letter seeking damages in excess of
$26,500,000.00. Alcoa filed its Notice of Removal on August 7, 2014. Plaintiffs filed

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Plaintiff failed to comply with Texas Rule of Civil Procedure 47, which now requires
a petition filed in Texas state court to include a statement regarding the amount of
monetary relief at issue based on certain categories:
(1) only monetary relief of $100,000 or less, including damages of any kind,
penalties, costs, expenses, pre-judgment interest, and attorney fees; or
(2) monetary relief of $100,000 or less and non-monetary relief; or
(3) monetary relief over $100,000 but not more than $200,000; or
(4) monetary relief over $200,000 but not more than $1,000,000; or
(5) monetary relief over $1,000,000.
TEX. R. CIV. P. 47.

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a Motion to Remand, asserting that Alcoa’s Notice of Removal was not timely. The
Motion to Remand has been fully briefed and is now ripe for decision.
II.

ANALYSIS
Federal courts have jurisdiction over civil actions in which there is complete

diversity between the parties and the amount in controversy exceeds $75,000.00,
exclusive of interest and costs. See 28 U.S.C. § 1332(a). A Notice of Removal must
be filed within thirty days. See 28 U.S.C. § 1446(b)(1). For purposes of an argument
that removal was untimely, the thirty-day period “is triggered only where the initial
pleading ‘affirmatively reveals on its face that the plaintiff is seeking damages in
excess of the minimum jurisdictional amount of the federal court.’” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 399 (5th Cir. 2013) (quoting Chapman v. Powermatic,
Inc., 969 F.2d 160, 163 (5th Cir. 1992)). A plaintiff who wants “the thirty-day period
to run from the defendant’s receipt of the initial pleading” is required to “place in the
initial pleading a specific allegation that damages are in excess of the federal
jurisdictional amount.” Id. (quoting Bosky v. Kroger Tex., LP, 288 F.3d 208, 210 (5th
Cir. 2002)). The defendant is not expected to determine from the circumstances
described in the initial pleading that the plaintiff is seeking damages in excess of
$75,000.00. See id.; Darensburg v. NGM Ins. Co., 2014 WL 4072128, *2 (E.D. La.
Aug. 13, 2014).

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In this case, Plaintiffs’ Original Petition and First Amended Petition failed to
identify the amount of damages they seek. Although the factual allegations in the
Original Petition and the First Amended Petition would likely have allowed Alcoa to
remove the case earlier, even if Alcoa “could have removed immediately,” Plaintiffs’
Original and First Amended Petitions “did not start the clock” such that Alcoa was
required to remove at that time. Id. at 400 n.13 (emphasis in original).
III.

CONCLUSION AND ORDER
Based on the foregoing, Defendant’s Notice of Removal was timely.

Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Remand [Doc. # 7] is DENIED.
SIGNED at Houston, Texas, this ____ day of October, 2014.
9th

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