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Hall v. Hillen

United States District Court, W.D. North Carolina, Asheville Division

March 4, 2014

WALTER R. HILLEN, Defendant.



THIS MATTER is before the Court on Plaintiff's Motion to Remand. [Doc. 5]. The Defendant Walter R. Hillen opposes the Plaintiff's Motion. [Doc. 6].


On July 29, 2013, the Plaintiff filed this action in the Macon County General Court of Justice, Superior Court Division, against Defendant Walter R. Hillen, asserting claims for personal injury, pain and suffering, and lost wages arising from a motor vehicle accident which occurred in Franklin, Macon County, North Carolina. [Complaint, Doc. 5-6].

The Complaint was properly served on the Defendant on August 5, 2013. [Doc. 5-17]. On August 21, 2013, the Defendant filed a motion seeking an extension of time to file an answer, which the state court granted, thereby extending the Defendant's deadline for responding to October 4, 2013. [Doc. 5-7]. On September 4, 2013, the Plaintiff served the Defendant with Interrogatories and a Request for Production. [Doc. 5-8]. The Defendant sought an extension of time to answer such discovery requests, which was granted. [Doc. 5-9].

On October 1, 2013, counsel for the Defendant emailed Plaintiff's counsel to inquire as to the amount of damages being sought. While awaiting the Plaintiff's response, on October 7, 2013, the Defendant served an Answer [Doc. 5-10], along with an Offer of Judgment [Doc. 5-11], and Interrogatories and a Request for Production on the Plaintiff [Doc. 5-12]. The Macon County Superior Court issued a Notice of Tentative Trial Schedule on October 16, 2013 [Doc. 5-13], and a Designation of Mediator was filed in the case on October 30, 2013 [Doc. 5-14].

On November 4, 2013, Defendant served Answers to Plaintiff's Interrogatories and Request for Production. [Doc. 5-16]. On that same day, Plaintiff's counsel responded to Defendant's counsel inquiry of October 1, 2013 with a settlement demand of $175, 000.00. [Doc. 5-15]. Thereafter, on November 13, 2013, Defendant filed a Petition for Removal to the United States District Court for the Western District of North Carolina, based on the existence of diversity jurisdiction.[1] [Doc. 1].


A defendant may remove a civil action from state court where the action is one "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts have original jurisdiction of civil actions between citizens of different states, where the amount in controversy exceeds $75, 000 and there exists complete diversity between all plaintiffs and all defendants. 28 U.S.C. § 1332. Since removal jurisdiction is not favored, the Court must "construe it strictly in light of the federalism concerns inherent in that form of federal jurisdiction, " "resolv[ing] all doubts in favor of remand." In re Blackwater Sec. Consulting, LLC , 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v. Columbia Organic Chems. Co. , 29 F.3d 148, 151 (4th Cir. 1994). The burden is on the party seeking removal to demonstrate that federal jurisdiction is proper. Id.

A. Thirty Day Provision For Removal

The Court first addresses the issue regarding the timing of the filing of the removal by the Defendant in this action. Generally, a notice of removal of a civil action must be filed within thirty days of receipt by the defendant of the initial pleading. See 28 U.S.C. § 1446(b)(2). If, however, the grounds for removal are not ascertainable from the initial pleading, the defendant has thirty days from "receipt... 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, " as long as no more than one year has passed from the date of the initial pleading in a diversity case. 28 U.S.C. §§ 1446(b)(3), (c).

The Court is not required to investigate the defendant's subjective knowledge regarding the discovery of grounds for removal, as such a determination "could degenerate into a mini-trial regarding who knew what and when." Lovern v. General Motors Corp. , 121 F.3d 160, 162 (4th Cir. 1997). Instead, the Court "can rely on the face of the initial pleading and on the documents exchanged in the case by the parties to determine when defendant had notice of grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleading or other subsequent paper." Id.

"Generally, the amount specified in the complaint will determine whether the jurisdictional amount is satisfied for purposes of removal." Bartnikowski v. NVR, Inc. , 307 F.Appx. 730, 734 (4th Cir. 2009). In North Carolina, however, "a plaintiff can plead for judgment in excess of a certain dollar amount, ... making it difficult to determine the exact amount in controversy" from the initial pleading. Id . Such is the case here where the Plaintiff, in accord with the ordinary practice in North Carolina state courts, merely alleges that his damages are in excess of $10, 000.00. Id.

The Plaintiff asserts that the Defendant had knowledge of the fact that the amount in controversy exceeded $75, 000.00 prior to the litigation even being filed. In so arguing, the Plaintiff relies on the numerous communications, including Plaintiff's policy limit demand, which occurred between Plaintiff's counsel and Defendant's insurance adjuster prior to defense counsel becoming involved in April 2013. Such pre-litigation conduct, however, has been deemed not to be an "other paper" providing notice within the meaning of 28 U.S.C. § 1446(b). See Chapman v. Powermatic, Inc. , 969 F.2d 160 (5th Cir. 1992); see also Saberton v. Sears Roebuck and Co. , 392 F.Supp.2d 1358 (M.D. Fla. 2005); see also Jade East Towers Developers v. Nationwide Mut. Ins. Co. , 936 F.Supp. 890 (N.D. Fla. ...

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