Martinez et al v. Smith et al

Filing 24

ORDER DENYING 13 Motion to Remand to State Court. Signed by Judge Sam Sparks. (jf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

l7&q4R3O
p,i

LSfE/
UR7

MARY ESTRADA, Individually and as
Representative of the Estate of Paul
Treviflo, Deceased, SENAIDA
MARTI.NEZ, and CONCEPCION
TREVINO,
Plaintiffs,

EX

CAUSE NO
A-17-CA-00032-SS

-vs-

DIVERSICARE HILLCREST, LLC
d/b/a Hillcrest Manor Nursing &
Rehabilitation Center, WALTER
SMITH, HILL-ROM COMPANY, INC.,
and LINAK U.S., INC.,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Plaintiffs Mary Estrada, individually and as representative of the Estate of Paul

Treviño, Senaida Martinez, and Concepcion Treviflo (Plaintiffs)' Motion to Remand [#131,

Defendant Hill-Rom Company, Inc. (Hill-Rom)'s Response [#18] in opposition, Defendant
Linak U.S., Inc. (Linak)'s Response [#19] in opposition, and Plaintiffs' Reply [#22] in support.
Having considered the documents, the case file as a whole, and the applicable law, the Court
enters the following opinion and order.

Background
This case arises from a nursing home accident. Paul Treviflo (Treviflo) was a patient at
Defendant Diversicare Hillcrest, LLC dlb/a Hillcrest Manor Nursing & Rehabilitation Center

(Hillcrest).

Mot. Remand [#13] at 2.

Defendant Walter Smith (Smith) is an employee of

Hillcrest. Id. On January 27, 2014, Smith used a Viking M Portable Lift manufactured by Hill-

Rom and Linak to transfer Treviño from his wheelchair to his bed. Id. Plaintiffs allege "[d]uring

-1-

I

the lift transfer, due to the negligence of [Hillcrest and/or Smith], and/or due to the strict product

liability and/or negligence of [Hill-Rom] and/or [Linak]," Treviño fell from the lift onto the floor
and was seriously injured. Not. Removal [#1-2] Ex.

1

(Original Pet.) ¶ 14. CT scans revealed

Treviño suffered a subarachnoid hemorrhage and subdural hematoma in his head, a left pleural
effusion, and a possible left proximal clavicle fracture. Id. Treviflo died from these injuries on

February 4, 2014, nine days after he fell off the lift. Id. ¶ 15. An autopsy concluded his death
was caused by the blunt force head injury he suffered when he fell to the floor. Id.

Plaintiffs filed their complaint in state court on January 19, 2016, bringing negligence
and product liability claims against Hillcrest, Smith, Hill-Rom, and Linak.

Id.

¶IJ

16-37.

Plaintiffs are all citizens of Texas. Not. Removal [#1] ¶ 2. Smith is believed to be a citizen of
Texas, and Hillcrest's citizenship is unknown. Id. ¶J 5-6. Hill-Rom is a corporation organized
and incorporated under the laws of Indiana with its principal place of business located in Indiana.
Id. ¶ 3. Linak is a corporation organized and incorporated under the laws of Delaware with its

principal place of business located in Kentucky. Id. ¶ 4.
The parties engaged in mediation on September 29, 2016, but were unable to agree to a

settlement. Mot. Remand [#13] at 3. On November 22, 2016, Plaintiffs reached an agreement to
settle their claims against Hillcrest and Smith. Id. On December 6, 2016, Plaintiffs sent an
email to counsel for Hill-Rom and

Linakthe remaining defendantsstating,

"Plaintiffs have

reached a settlement with the facility." Id. [#13-2] Ex. B (December 6 Email) at

1

(emphasis

added).' The December 6 Email also explained Steve Darling, counsel for Hillcrest and Smith,
would turn over the lift, which had been in Hillcrest's possession up until the settlement, to
Plaintiffs if all the parties agreed.

Id.

Hill-Rom agreed to this preservation proposal on

December 23, 2016, and Linak agreed on December 27, 2016. Id. [#13-5] Ex. E at 1;

'No notice of settlement was filed with the state court.
-2-

see

id.

[#13-8] Ex. H at 1.

Apart from these responses, the parties did not exchange any emails,

documents, or phone calls from December 6, 2016, to January 3, 2017. Id. [#13-1] Ex. A (Breen
DecI.) ¶ 6.

On January 3, 2017, Hill-Rom sent an email to Plaintiffs and Linak stating, "Now that
Plaintiffs have settled with the Hillcrest defendants and Walter Smith, the case becomes

removable to federal court." Id. [#13-9] Ex. I (January

3

Email) at

1.

Later, on January 18,

2017, Linak sent an email to Plaintiffs, stating "Plaintiff's counsel has notified us that the

nursing home facility has settled all claims with the Plaintiff I have not received notification
that the individual, Walter Smith, has settled any claims against him with the Plaintiff Can you

please let me know if Walter Smith settled all claims with the Plaintiff." Hill-Rom Resp. [#18-3]
Ex. 3 (January 18 Email) at 1. A few hours later, Plaintiffs confirmed they settled with both

Hillcrest and Smith. Id. ("Yes, there is a settlement agreement signed by Plaintiffs and the
settlement agreement includes Walter Smith and the facility.")

When Plaintiffs first filed their action, diversity jurisdiction did not exist because
Plaintiffs and Smith are all citizens of Texas. However, after Plaintiffs' settlement with Hillcrest
and Smith, Linak, a resident of Delaware and Kentucky, and Hill-Rom, a resident of Indiana,

were the only remaining defendants. Based on this complete diversity, Linak, with Hill-Rom's
consent, removed the case to federal court on January 18, 2017. See Not. Removal [#1]

¶IJ

13-

14.

Analysis
I.

Legal Standard
A defendant may remove a civil action from state court to federal court if the action

originally could have been brought in federal court.

-3-

See

28 U.S.C. § 144 1(a). Federal courts

have original jurisdiction in civil actions between "citizens of different states

.

where the

. .

matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." Id.
§

1

332(a)(1). "The removing party bears the burden of showing that federal jurisdiction exists

and that removal was proper." Manguno

v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723

(5th Cir. 2002).
There are two ways a case can be removed under 28 U.S.C.

§

1446(b). First, a defendant

may file a notice of removal within 30 days after the defendant receives "a copy of the initial

pleading setting forth the claim for relief upon which such action or proceeding is based." Id.
§

1441(b)(l). Second, if the initial pleading is not removable, a defendant may file a notice of

removal within 30 days after the defendant receives "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." Id.

§

1441(b)(3).

"Other paper" under

§

1446(b)(3) may be discovery

responses, pleadings, deposition transcripts, and attorney communications.
Corp., 965 F. Supp. 878, 881 (S.D. Miss. 1997) (citing cases).

Still

v.

Ga.Pac.

Further, "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
Bosky

v.

. . .

Kroger Tex., L.P., 288 F.3d 208, 211 (5th Cir. 2002); see also Scott, Hulse, Marshall,

Feuille, Finger & Thurmond, P.C.

v.

Integrated Health Servs. at Hanover House, Inc., No. 3:08-

CV-326-KC, 2008 WL 5683482, at *3 (W.D. Tex. Oct. 17, 2008). Finally, "[a] case may not be
removed under subsection (b)(3) on the basis of [diversity] jurisdiction.

commencement of the action." 28 U.S.C.

§

1446(c).

-4-

. .

more than

1

year after

II.

Application
Linak argues removal is proper because the case was removed within 30 days of the

receipt of "other paper" and within
¶IJ

1

year from when the case was filed. Not. Removal [#11

12-13; Linak Resp. [#19] at 6. Linak alleges the January 18

Emailstating, "Yes, there

is a

settlement agreement signed by Plaintiffs and the settlement agreement includes Walter Smith
and the facility"constituted "other paper" from which Linak first ascertained the case was
removable.2 Because Linak removed the same day, January 18, 2017, Linak argues the case was

removed within 30 days of Linak's receipt of the January 18 Email and within

1

year of when

Plaintiffs filed their complaint on January 19, 2016. Id. at 9-10.
In contrast, Plaintiffs argue removal is not proper because Linak should have ascertained
the case was removable from the December 6 Email, which stated, "Plaintiffs have reached a

settlement with the facility. Steve Darling indicates the facility has the lift preserved and will
turn it over.

. .

." Mot. Remand [#131 at 8-9.

In order to remove a case based on "other paper" under

§

144 1(b), the information

supporting removal in the "other paper" must be "unequivocally clear and certain."3
F.3d at 211.

Bosky,

288

Here, the December 6 Email was not "unequivocally clear and certain" in

2

Plaintiffs urge this Court to disregard the January 18 Email as a sham, claiming Linak only asked
Plaintiffs on January 18 if they had settled with Smith to feign ignorance that the case actually became removable
after the December 6 Email. Mot. Remand [#13] at 13-14. However, because the Court fmds the December 6
Email was not "unequivocally clear and certain," see infra Section II, Linak's email to Plaintiffs on January 18
asking whether Plaintiffs settled with Smith was legitimate.

Plaintiffs claim the "unequivocally clear and certain' analysis is not even applicable to the facts of this
case." Reply [#22] at 2. Specifically, Plaintiffs argue because, in the January 3 Email, Hill-Rom acknowledged
Plaintiffs' settlement with both Hillcrest and Smith made the case removable, the "unequivocally clear and certain"
analysis does not apply. Id. at 3 (arguing the cases applying the "unequivocally clear and certain" analysis do not
involve "defendants specifically stating they know a case is removable."). The Court disagrees. Plaintiffs do not
provide any authority showing the "unequivocally clear and certain" analysis does not apply if one defendant
believes or states the case is removable. On the contrary, courts in the Fifth Circuit consistently apply the
"unequivocally clear and certain" analysis to removal based on "other paper." See, e.g., Hinojosa v. Chowning, No.
CIV.A. L-10-79, 2010 WL 4065487, at *2 (S.D. Tex. Oct. 12, 2010); Scott, Hulse, Marshall, Feuille, Finger &
Thurmond, P.C, 2008 WL 5683482, at *3; Stiles v. Barnes Grp., Inc., No. CIV. 3:01-CV-2750-H, 2002 WL
1298734, at *2 (N.D. Tex. June 11, 2002).

-5-

demonstrating the case's removability. The plain language of the December 6 Email states

Plaintiffs settled with only Hillcrest and never mentions Smith. See December 6 Email at

1

("Plaintiffs have reached a settlement with the facility.") (emphasis added). The January 18
Email, however, does unequivocally show the case was removable. See January 18 Email at

1

("Yes, there is a settlement agreement signed by Plaintiffs and the settlement agreement includes

Walter Smith and the facility."). Therefore, the January 18 Email constitutes "other paper," and

Linak's removal was timely and proper.
Plaintiffs argue Linak was required to apply a "reasonable amount of intelligence" in
ascertaining removability from the December 6 Email. See Mot. Remand [#13] at 9. Plaintiffs
further claim Linak, applying a "reasonable amount of intelligence," should have concluded the

December 6 Email indicated Plaintiffs settled with both Hillcrest and Smith because:
(1) Hillcrest and Smith were referred to collectively as "the Hillcrest Defendants" in litigation

and mediation; (2) no employer such as Hillcrest would settle without including the release of an

employee such as Smith; and (3) the same lawyers represented Hillcrest and Smith. Id. at 9-10.

According to Plaintiffs, if Linak employed this "reasonable amount of intelligence" when
reading the December 6 Email, it would have concluded Plaintiffs settled with both Hillcrest and
Smith, making the case removable. Id. at 11.

However, the Fifth Circuit has not adopted the "reasonable amount of intelligence" rule.
To support their argument, Plaintiffs only cite case law from the Second, Sixth, and Ninth

Circuits. See id at 9 n.31 (citing Graiser v. Visionworks ofAm., Inc., 819 F.3d 277, 285 (6th Cir.
2016); Cutrone v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 145 (2d Cir. 2014);

Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013)). What's more,
these courts apply the "reasonable amount of intelligence" rule in narrow circumstances. For

instance, each case Plaintiffs cite involves removal under the Class Action Fairness Act (CAFA).
In addition, the cases direct defendants to use a "reasonable amount

context of calculating the amount in controversy.

See, e.g., Graiser,

of intelligence" in the

819

F.3d at 285 (finding

defendant has a "duty to apply reasonable amount of intelligence" to its reading of the "other

paper," but cannot prevent the start of the 30 day window by refusing to "multiply figures clearly
stated") (internal citation omitted).

Neither of these circumstances is present here. Linak did not remove the case under the
CAFA, and Plaintiffs are asking Linak to do much more than calculate numbers on a page.

Plaintiffs expect Linak to ignore the plain language of the December 6 Email"Plaintiffs have
reached a settlement with the facility"and make numerous leaps to arrive at the conclusion that
Plaintiffs must have also settled with Smith. Making those types of assumptions is not akin to
multiplying clearly stated figures.

In fact, as Linak points out, courts in the Fifth Circuit

specifically state "defendants should not have to speculate as to removability." Linak Resp.
[#19] at

5

(quoting Akin v. Big Three

Indus., Inc., 851

F. Supp.

819, 825

(E.D. Tex.

1994)).

For

these reasons, the Court is not persuaded by Plaintiffs' argument that Linak was required to
exercise a "reasonable amount of intelligence" to determine whether the December 6 Email

disclosed Plaintiffs settled with Hillcrest and Smith.4
In sum, based on the plain language of the December 6 Email, it was not unequivocally

clear and certain Plaintiffs settled with both Hillcrest and Smith.

The December 6 Email

therefore does not constitute "other paper" that triggers the 30-day window for Linak to remove

' Plaintiffs claim Hill-Rom applied a "reasonable amount of intelligence" to conclude Plaintiffs settled with
Hillcrest and Smith. Mot. Remand [#13] 11-12. But the fact Hill-Rom guessed Plaintiffs settled with Hillcrest and
Smith does not change the Court's analysis. The December 6 Email did not unequivocally state Plaintiffs settled
with both Hillcrest and Smith. Moreover, as noted above, the Fifth Circuit has not adopted the "reasonable amount
of intelligence" rule.

-7-

the case. Instead, the January 18 Email unequivocally stated the case was

removable.5

Linak removed the case within 30 days of January 18, 2016 and within

1

Because

year of the date

Plaintiffs' filed their complaint, removal was proper.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiffs Mary Estrada, individually and as representative

of the Estate of Paul Treviflo, Senaida Martinez, and Concepcion Treviflo's Motion to
Remand is DENIED.
SIGNED this the

b day of March 2017.

SAM
UNITED STATES DISTRICT JUDGE

To the extent Plaintiffs argue Hill-Rom's January 3 Email constitutes "other paper," the Court need not
address that argument. Even if the January 3 Email met the "unequivocally clear and certain" standard and triggered
the window for removal, Linak removed the case within 30 days of the January 3 Email.

-8-