Brown v. Home Depot U.S.A., Inc.
ORDER GRANTING 6 Motion to Remand to State Court. Signed by Judge Sam Sparks. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WE
HOME DEPOT U.S.A., INC.,
BE IT REMEMBERED on the 29th day of August 2017, the Court held a hearing in the
above-styled cause, and the parties appeared in person or through counsel. Before the Court are
Plaintiff Lucy Brown's Motion for Remand [#6] and Defendant Home Depot's Response [#9]
thereto, as well as Plaintiff's Supplemental Brief [#12] and Defendant's Supplemental Brief
[#13]. Having reviewed the documents, the evidence presented at the hearing, the arguments of
counsel, the relevant law, and the file as a whole, the Court now enters the following opinion and
Plaintiff initiated this action in state court against Defendant and Defendant's former
employee Amber Ruales on November 20, 2015, alleging Ruales and several other Home Depot
employees assaulted and falsely imprisoned Plaintiff on suspicion of shoplifting. Notice
Removal [#1-2] (Plaintiff's Original Petition) at 1; id. [#1-3] (Plaintiff's Third Amended
Petition) at 3. On September 19, 2016, the state court action was called to trial, but the trial date
was subsequently reset for August 21, 2017 after the parties failed to empanel a jury.
3. At the original trial date, both Ruales and Home Depot remained defendants.
On February 27, 2017, Defendant emailed Plaintiff asking if Plaintiff would dismiss the
personal claims against Ruales, a nondiverse defendant. Mot. Remand [#6-1] Ex. A (February
27, 2017 Email). Defendant conceded all actions by Ruales were within the course and scope of
her employment and assured Plaintiff that Ruales had "pledged full cooperation, such that she
need not be treated as a nonparty and subpoenaed." Id. Defendant also specifically noted "the
case has now been pending for more than one year [and] cannot be removed even if there is
complete diversity." Id.
On July 20, 2017, Plaintiff proposed to dismiss Ruales in exchange for Defendant's
cooperation in taking various photographs of the store premises and ensuring Ruales's
availability at trial. Id. [#6-2] Ex. B (July 20, 2017 Email). Pursuant to this agreement, Plaintiff
dismissed Ruales from this action on July 21, 2017. Id. [#6-3] Ex. C (July 21, 2017 Email);
Notice Removal [#1-3] (Plaintiff's Third Amended Petition) at 3. Defendant then
more than a year and a half after Plaintiff filed
remove the action to this Court on
August 7, 2017. Id. [#1].
District courts have diversity jurisdiction over civil actions between citizens of different
States, where the amount in controversy exceeds $75,000.00. 28 U.S.C.
Court has interpreted this statute to require "complete
1332(a). The Supreme
diversity"that is, the citizenship of every
plaintiff must be different from that of every defendant.
68 (1996). Further, diversity actions are removable "only
519 U.S. 61,
if none of the parties in interest
properly joined and served as defendants is a citizen of the State in which such action is
brought." 28 U.S.C.
If an action is not removable based on the parties' initial pleadings, a notice of removal
may be filed within thirty days after the defendant receives an amended pleading, motion, order,
or other paper from which it may first be ascertained the case has become removable. Id.
However, an action may not be removed on the basis of jurisdiction conferred by
1332 more than one year after commencement
of the action, unless the district court finds the
plaintiff has acted in bad faith to prevent removal. Id.
Though the Fifth Circuit has not set a definitive standard for determining bad faith under
1446, most courts focus on whether the plaintiff's conduct demonstrates manipulation of the
statutory rules to prevent the defendant from exercising his right to removal. See Rantz
Coat, Inc., No. 17-3338, 2017 WL 3188415 at *5 (E.D. La. July 26, 2017); Bryson
Fargo Bank, NA., No. 1:16-CV-28, 2016 WL 1305846 at *5
(E.D. Tex. March 31, 2016)
(emphasizing focus on "clearly egregious" facts); see also Johnson
HCR Manorcare LLC,
No. 1:15CV189, 2015 WL 6511301 at *5 (N.D.W. Va. October 28, 2015) (drawing a distinction
between "trial strategy" and bad faith forum manipulation). The burden of showing the plaintiff
acted in bad faith is borne by the party seeking removal. See, e.g., Rantz, 2017 WL 3188415 at
*5; Bryson, 2016 WL 1305846 at
*5; see also Manguno v. Prudential Prop. and Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002) (noting any doubts or ambiguities regarding removal "are
construed against removal and in favor of remand to the state court")
The current action was pending in state court for over a year and a half before Defendant
sought removal to this Court. Nevertheless, Defendant alleges removal under
1332 is timely
because Plaintiff acted in bad faith by improperly joining a nondiverse party, Ruales, to prevent
removal. See 28 U.S.C.
1332, 1446(c). The Court finds Defendant has not carried its burden
of showing Plaintiff has acted in bad faith, and accordingly, remand is appropriate.
Defendant has failed to identify any "egregious facts" suggesting bad faith forum
manipulation by Plaintiff. Bryson, 2016 WL 1305846 at *5 Though Defendant claims Plaintiff
"never intended to prosecute claims against Ruales individually," Defendant acknowledges
Ruales remained a defendant when Plaintiff brought this case to trial in September 2016. See
Def.'s Resp. [#9] at
Notice Removal [#1] at 3. Plaintiff has also previously deposed Ruales
regarding her role in detaining Plaintiff on February 12, 2014. See Def.'s Resp. [#9] at 2.'
This is a far cry from other scenarios in which courts have found bad faith forum
manipulation by the plaintiff. For example, in Lawson
Parker HannijIn Corp., the plaintiff
waited seven months after initiating the lawsuit to serve the nondiverse defendant, did not move
for a default judgment when the defendant failed to appear, never sought discovery from the
defendant, and finally nonsuited the defendant shortly after the expiration of the one-year period
for removal. No. 4:13-cv-923-O, 2014 WL 1158880 at *5
Similarly, in Tedford
Lambert Co., the Fifth Circuit found the plaintiff acted in bad faith by joining a nondiverse party
hours after learning that the defendant intended to remove the case, despite the plaintiff's
inability to state a cognizable claim against the nondiverse party. 327 F.3d 423, 427-28 (5th Cir.
2003).2 The plaintiff then signed and post-dated a notice of nonsuit prior to expiration of the one-
year removal period, but failed to file the document with the court until the one-year removal
period had lapsed. Id. By contrast, in this case Plaintiff brought arguably meritorious claims
The parties' briefmg indicates the present action was filed after Plaintiff nonsuited a prior action brought
on the same set of facts. See Def. 'S Resp. [#9] at 2. Ruales was deposed as part of the prior action. Id
Section 1446(c) encompasses the equitable exception to the one-year removal limit applied in Tedford.
See Day v. Western World Ins. Co., No. 14-00348BAJSCR, 2014 WL 4373301 at *4 (M.D. La. Sept. 3, 2014)
("Whether under Tedford or the statute, the legal standards to be applied are the same because the 2011 amendments
to the federal jurisdiction statutes simply codified the long recognized jurisprudential equitable-tolling exception to
the one-year deadline.").
deposed her regarding her role in detaining
and attempted to empanel
a jury in state court while Ruales remained a defendant. See Def.'s Supp. Brief [#13] at 1-2;
Def.'s Resp. [#9] at 2; Notice Removal [#1] at 3.
Moreover, on February 27, 2017, Defendant explicitly asked Plaintiff to dismiss Ruales
from the lawsuit, suggesting Ruales was "no longer needed as a party" because Home Depot was
conceding Ruales's actions were within the course and scope of her employment. Mot. Remand
[#6-1] Ex. A (February 27, 2017 Email). Defendant also assured Plaintiff the case could not be
removed to federal court if Ruales was dismissed. Id. Thus, it was Defendant, not Plaintiff, who
initiated dialogue regarding the dismissal of Ruales from the
When Plaintiff eventually
responded to this proposal and negotiated several concessions, Defendant then promptly sought
to remove the case to federal court. See Mot. Remand [#6] at 6-7.
Finally, Defendant has given no compelling explanation for its decision to wait until eight
months after the removal deadline to file a notice of removal with this Court.
Br. [#13] at 1-2. Defendant alleges Plaintiff has done nothing to prosecute her claims against
Ruales for over three years. Def. 'S Resp. [#9]. If Plaintiff's failure to prosecute her claims
against Ruales is as readily apparent as Defendant suggests, the Court is at a loss as to why
Defendant has never specially excepted to Ruales's inclusion in this lawsuit as a proper defendant. See
Notice Removal [#1-3] (Defendant Home Depot's Second Amended Answer and Special Exceptions) at 1-7; see
also Def.' s Supp. Brief [#13] at 1-2 (acknowledging Ruales was proper party to the suit).
See Johnson v. NCR Manorcare LLC, No. 1:15CV189, 2015 WL 6511301 at *5 (N.D.W. Va. October 28,
2015) ("[T]he fact that [the dismissed party] was deposed stands in stark contrast to other cases where a defendant's
participation was far less substantial.").
Defendant's notice of removal fails to mention Defendant asked for dismissal of Ruales from the lawsuit,
instead painting the parties' agreement to dismiss Ruales as a proposal originating entirely with Plaintiff. See Notice
Removal [#1] at 5.
Defendant waited almost eight months after the removal deadline before using
1446(c)' s bad
faith exception to remove the case to federal court.6
In these circumstances, the Court finds Defendant has failed to carry its burden of
demonstrating Plaintiff engaged in bad faith forum manipulation.
See 28 U.S.C. §
Therefore, the Court GRANTS Plaintiffs Motion for Remand.
IT IS ORDERED that Plaintiffs Motion for Remand [#6] is GRANTED.
SIGNED this the
7ay of September
UNITED STATES DISTRICT JUDGE
Defendant's response suggests the real reason for delay in removing the action lies in Defendant's own
ignorance of applicable law. See Def. 's Resp. [#9] at 3; see also Shriver v. Sprintcom., Inc., 167 F. Supp. 2d 962,
964 (S.D. Tex. 2001) (noting with respect to dilatory removal that "[e]quity aids the vigilant and not those who
slumber on their rights").
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