Torres v. Hobby Lobby Stores, Inc. et al
ORDER DENYING 10 Motion to Remand to State Court; DENYING 11 Motion to Stay Signed by Judge Kathleen Cardone. (dl1)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
HOBBY LOBBY STORES, INC. and
On this day, the Court considered Plaintiff Karina Torres’s Motion to Remand, ECF No.
10, and Motion to Stay Pending Court’s Ruling on Plaintiff’s Motion to Remand, ECF No. 11.
For the reasons set forth below, the Motion to Remand is DENIED and the Motion to Stay is
DENIED as moot.
On February 27, 2013, Karina Torres (“Plaintiff”) filed an Original Petition (“Petition”)
against Hobby Lobby Stores, Inc. (“Hobby Lobby”) and Tom Arenas (“Arenas”) (collectively
“Defendants”) in County Court No. 6 of El Paso County, Texas (the “State Court”) in the abovecaptioned case (the “Case”). Def’s Notice of Removal ¶ 1 (“Notice of Removal”), ECF No. 1;
Pet. §§ I-VII, ECF No. 1.1 Plaintiff alleged that she suffered personal injuries in a slip-and-fall at
a Hobby Lobby store in El Paso, Texas at which Arenas was the manager, and asserted premises
Defendants included the Petition in the same document as their electronically filed Notice of Removal. The
paragraph and section references in this Order are to the underlying documents within that single submission.
liability causes of action against both Defendants. Notice of Removal ¶ 2; Pet. § III. Plaintiff did
not allege a specific amount of damages. Instead, she alleged that she “suffered damages in an
amount within the jurisdictional limits of this court [the State Court]” due to her continuing
medical expenses, inability to perform household duties, loss of earning capacity, and physical
and mental pain and suffering. Pet. § IV. She further alleged that she was entitled to punitive
damages. Id. § V. Each Defendant answered individually and filed special exceptions on April 2,
2013. Notice of Removal ¶ 4, Exs. B-C.
On June 5, 2013, Defendants filed the Notice of Removal. Defendants averred that the
Case was not initially removable because Plaintiff did not specify the amount of damages she
sought, but that it became removable on May 23, 2013, when Plaintiff, in a response to a request
for admission, stated that she was seeking damages in excess of $75,000. Id. ¶¶ 6-7. Plaintiff
now moves to remand. She argues that the Case was removable by April 2, 2013, and that
Defendants’ thirty-day window in which to remove the Case therefore expired before they filed
the Notice of Removal. Mot. to Remand ¶¶ 18, 27. Defendants have filed a Response to the
Motion to Remand (“Response”), ECF No. 12, and Plaintiff has filed a Reply in support of the
Motion to Remand (“Reply”), ECF No 14.
A federal court has subject matter jurisdiction based on diversity of citizenship “where
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). A defendant may remove a
case to the federal district court in the division embracing the place where such action is pending
in state court if the district court has original jurisdiction over the matter and the removal
procedure has been properly followed. 28 U.S.C. § 1441. The timing of removal is governed by
28 U.S.C. § 1446(b). It reads in pertinent part:
(1) The notice of removal of a civil action or proceeding shall be filed
within 30 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 30 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,
whichever period is shorter.
(3) Except as provided in subsection (c), 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, 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).
“Restated, 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, 397-98 (5th Cir. 2013).
The initial pleading triggers the thirty-day removal period when it “affirmatively reveals on its
face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the
federal court.” Id. at 399 (emphasis removed) (citing Chapman v. Powermatic, Inc., 969 F.2d
160, 163 (5th Cir. 1992)). “The party seeking to remove bears the burden of showing that federal
jurisdiction exists and that removal was proper.” Id. at 397 (citing Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). “The district court is required to remand a
case to state court if, at any time before final judgment, it determines that it lacks subject matter
jurisdiction over the case.” Muniz v. El Paso Marriott, No. EP-09-CV-274-KC, 2009 WL
4878619, at *2 (W.D. Tex. Dec 8, 2009) (citing 28 U.S.C. § 1447(c)). “Any ambiguities are
construed against removal and in favor of remand to state court.” Mumfrey, 719 F. 3d at 397; see
also Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988); Brown v. Demco, Inc., 792
F.2d 478, 481 (5th Cir. 1986).
Plaintiff and Defendants agree that the parties are completely diverse and that the amount
in controversy exceeds $75,000. Notice of Removal ¶¶ 16-18; Mot. to Remand ¶¶ 18-20. They
dispute only one point: whether the Petition triggered the thirty-day removal period outlined in
28 U.S.C. 1446(b)(1), and by extension, whether removal was timely. Plaintiff additionally
contends in her Reply that, to the extent Mumfrey’s holding appears to resolve the timeliness
dispute in Defendants’ favor, it should not be given “retroactive effect” because it was not
decided until after the time at which Plaintiff contends the thirty-day removal period expired.
Reply ¶¶ 3-5.
Trigger for thirty-day removal window
Plaintiff argues that, although the record is not clear as to when Defendants were served
with the Petition, they were certainly “in receipt of” it by April 2, 2013, when they appeared and
filed answers in the State Court. Mot. to Remand ¶ 5. If the Case was removable at that point, the
thirty-day removal period expired before Defendants filed the Notice of Removal on June 5,
2013. Plaintiff argues that numerous cases support the proposition that “a petition need not state
an exact dollar amount for the removal clock to start ticking [;]. . . the jurisdictional amount in
controversy is ‘facially apparent’ from a petition when the allegations show on their face that it is
more likely than not that the amount in controversy exceeds $75,000.” Id. ¶ 17. She further
argues that the types of damages she alleged in the Petition have been held to make it “facially
apparent” that the amount in controversy exceeded $75,000. Id. ¶¶ 20-24. In sum, Plaintiff
argues that the case stated by the Petition was removable, that the Notice of Removal was
untimely, and that remand is required.
Defendants argue that Mumfrey – which was decided on June 10, 2013, nineteen days
before Plaintiff filed the Motion to Remand, and which Plaintiff does not address in the Motion
to Remand – is dispositive. They argue that Mumfrey demonstrates both that the cases Plaintiff
relies on are inapposite and that the Notice of Removal was timely. As Mumfrey extensively
discussed the very question at issue here, the Court addresses it below.
In Mumfrey, the Fifth Circuit explained that there are two main ways in which a plaintiff
can dispute the timing of removal. Mumfrey, 719 F.3d at 398. The first type of dispute occurs
when the defendant removes a case within thirty days of receiving the initial pleadings. Id. In
these “amount disputes” the plaintiff argues that remand is required because the amount in
controversy is not met. Id. The other type of dispute occurs when the defendant does not remove
within thirty days of receiving the initial pleading, but instead removes within thirty days of
receiving an amended pleading or “other paper.” Id. In these “timeliness disputes” the plaintiff
argues that it was clear from the initial pleadings that the amount in controversy requirement was
met, and that the defendant has thus missed the deadline to remove. Id.
Mumfrey clarified a confusing line of jurisprudence in this Circuit regarding the trigger
for the initial thirty-day removal period that is at issue in timeliness disputes. Chapman v.
Powermatic, Inc., 969 F.2d 160 (5th Cir. 1992), laid out a “bright-line rule requiring the
plaintiff, if he wishes the thirty-day time period to run from the receipt of the defendant’s
initial pleading, to place in the initial pleading a specific allegation that damages are in
excess of the federal jurisdictional amount.” Mumfrey, 719 F.3d at 399 (citing Chapman, 969
F.2d at 163) (bold and italics in Mumfrey). In Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th Cir.
2002), the court addressed in dicta the triggering of the thirty-day removal clock. Id. at 209-11.
After reiterating Chapman’s “bright line rule,” the Bosky court stated, in a line that “has become
the source of significant confusion,” Mumfrey, 719 F.3d at 400, “we have since held that specific
damage estimates that are less than the minimum jurisdictional amount, when combined with
other unspecified damage claims, can provide sufficient notice that an action is removable so as
to trigger the time limit for filing a notice of removal.” Id. (citing Bosky, 288 F.3d at 210).
However, as Mumfrey explains, the statement beginning “we have since held” was “incorrect,”
as neither case Bosky cited for that proposition “considered what triggers the thirty-day window.”
Some district courts, this Court among them, have applied that statement in Bosky to their
analyses of timeliness disputes. See, e.g., Salomon v. Wells Fargo Bank, N.A., No. EP-10-CV106-KC, 2010 WL 2545593, at *3 (W.D. Tex. 2010) (Cardone, J.) (citing Bosky, 288 F. 3d at
210). As this Court noted in Salomon, “[t]here is a split among district courts in this circuit
regarding the holding in Chapman.” Id at *4 (citation omitted). “Some district courts have
interpreted Chapman to mean that the thirty-day removal clock is triggered only when the
plaintiff’s initial pleading spells out, in as many words, that the federal jurisdictional limit has
been reached.” Id. (citation omitted). Other courts, however, ruled that “Chapman does not
mandate rigid adherence to some kind of formalistic pleading requirement.” Id. (internal quotes
and citations omitted). Rather, these courts ruled that the Chapman “bright line rule” “merely
requires that a state court complaint be sufficiently definite on its face to enable defendants to
ascertain removability without reliance on speculation or conjecture.” Id. For instance, the Court
found in Salomon that “mere recitation of an extensive list of damages in an employment matter
may suffice to affirmatively reveal that the amount in controversy will likely exceed the
jurisdictional minimum.” Id.; see also Apodaca v. Caddell Constr. Co., Inc., No. 3:11-CV00342-DB, ECF No. 9, at 4-5 (W.D. Tex. Oct. 31, 2011) (holding that initial pleading in
premises liability action seeking “damages in nearly every category of conceivable damages”
affirmatively revealed that amount in controversy requirement was met).
Mumfrey thus resolves the “confusion” engendered by Bosky and its progeny and the
“split” referenced in Salomon by clarifying that “the rule remains that the thirty-day clock is not
triggered unless the initial pleading affirmatively reveals on its face” that the plaintiff is seeking
damages in excess of the jurisdictional amount. Mumfrey, 719 F.3d at 400 (internal quotes and
citation omitted). The removal clock only starts if the pleading contains a “specific allegation
that damages are in excess of the federal amount.” Id. (quotation marks omitted).
Mumfrey’s unequivocal holding leaves Plaintiff little room to argue that her initial
pleading, which lacked a specific allegation that the federal amount in controversy requirement
was met, made the Case removable. Indeed, Plaintiff concedes as much in her Reply. Plaintiff
“apologizes to the Court and Defendants that he [sic] did not address” Mumfrey in the Motion to
Remand, and makes no argument that Mumfrey would not control under the facts at hand. Reply
¶ 1. Thus, so long as Mumfrey’s holding is applicable to the Case, the Notice of Removal was
“Retroactive” applicability of Mumfrey
Plaintiff argues in her Reply that the Court should not give Mumfrey retroactive effect.
Id.¶ 1. She first states that the significance of Mumfrey is not that it reaffirmed Chapman’s
“bright line,” but that it “expressly disavowed” the dicta in Bosky. Id. ¶ 2. She then asserts that
“during the entire thirty-day removal period” the cases cited in the Motion to Remand were
“controlling law.” Id. ¶ 3. She finally notes that “where courts have overturned prior decisions
(or established new rules), ‘the Constitution neither prohibits nor requires retrospective effect’
and the determination is a matter of judicial policy.” Id. ¶ 4 (citing Linkletter v. Walker, 381 U.S.
618, 628-29 (1965)). She then argues that in light of the foregoing and the general principle that
the Court should resolve doubts in favor of remand, the Court should not give Mumfrey
“retroactive effect.” Id. ¶ 5.
Plaintiff’s premises are incorrect and her argument fails. The cases cited in the Motion to
Remand indicating that an initial pleading like Plaintiff’s may trigger the thirty-day clock were
not “controlling law.” Though they had not been overruled, they were not binding precedent;
they existed in tension with the plain language of Chapman and the cases holding that such
pleadings did not trigger the thirty-day clock. See, e.g., Capturion Network, LLC v. Daktronics,
Inc., No. 2:08-CV-232-KS, 2009 WL 1515026, at *3-7 (S.D. Miss. May 29, 2009) (discussing
the competing interpretations of Chapman, collecting cases, and holding that a “specific
allegation” of the amount in controversy was needed to trigger the removal clock). Had Mumfrey
not been decided, the Court would still have needed to determine, based on the facts of the Case,
whether the Petition “affirmatively reveal[ed] on its face” that the amount in controversy
requirement was fulfilled. See Chapman, 969 F.2d at 163.
Along similar lines, Mumfrey did not “overturn [a] prior decision or establish [a] new
rule.” Reply ¶ 4. Rather, it clarified “confusion,” Mumfrey, 719 F.3d at 400, and reaffirmed
Chapman’s “bright line rule,” such that “the rule remains that the thirty-day clock is not
triggered unless the initial pleading affirmatively reveals on its face” its removability. Id.
(citation omitted) (emphasis added).
Mumfrey also makes clear that Plaintiff’s reliance in the Motion to Remand on cases
involving amount disputes is misplaced, as such cases are “inapposite” to the analysis of
timeliness disputes.2 Id. Her argument that the “jurisdictional amount in controversy is ‘facially
apparent,’” Mot. to Remand ¶ 18, is similarly off the mark, as “the ‘facially apparent’ inquiry is
relevant only to ‘amount dispute’ cases.” Mumfrey, 719 F.3d at 400. In other words, even had
Mumfrey not been decided, much of the case law Plaintiff relies upon would not have been on
point and hence would not have dictated remand.
Finally, the precedent Plaintiff cites in support of her argument against “retroactive
application” of Mumfrey is wholly inapplicable to the Case. Linkletter was a constitutional
criminal procedure case concerning whether the exclusionary rule articulated in Mapp v. Ohio,
367 U.S. 643 (1961), should be retroactively applied to criminal cases “finalized before the
promulgation of the rule.” Id. at 619-20, 628. Linkletter has no apparent bearing on whether a
decision promulgated during the pendency of a civil case should be applied to that case.
Similarly, Plaintiff cites Teague v. Lane, 489 U.S. 288 (1989), for the proposition that
“constitutional rules of criminal procedure generally do not have retroactive effect to cases that
become final before the decision is announced.” Reply ¶ 5. Plaintiff does not explain how that
proposition is relevant here beyond the bare statement that “although our case is not ‘final,’ the
procedural thirty day rule is final, and Mumfrey was not issued until more than a month after
Defendants’ removal period expired.” Id. The Court finds that argument unavailing.
In light of the above, the Court concludes that it is proper to apply the decision in
Mumfrey to the Case, and that the Notice of Removal was therefore timely.
Plaintiff concedes that most of those cases were inapposite amount disputes, not timeliness disputes. See Reply ¶ 3
(“a number of Plaintiff’s cited cases were ‘timeliness’ cases, not just ‘amount dispute’ cases.”).
For the foregoing reasons, Plaintiff’s Motion to Remand, ECF No. 10, is DENIED.
Plaintiff’s Motion to Stay, ECF No. 11, is DENIED as moot.
SIGNED this 31st day of October, 2013.
UNITED STATES DISTRICT JUDGE
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