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Franks v. SSC Brevard Operating Company, LLC

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

August 12, 2019

FRANCES FRANKS, Plaintiff,
v.
SSC BREVARD OPERATING COMPANY, LLC, d/b/a BRIAN CENTER HEALTH AND REHABILITATION/BREVARD, SAVASENIOR CARE ADMINISTRATIVE SERVICES, LLC, and JAN DOES 1-10, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Plaintiff's Motion to Remand. [Doc. 6]. The Defendants oppose the Plaintiff's Motion. [Doc. 10].

         I. PROCEDURAL BACKGROUND

         On March 27, 2018, Frances Franks (“Plaintiff”) filed this action in the Transylvania County General Court of Justice, Superior Court Division, against SSC Brevard Operating Company, LLC, d/b/a Brian Center Health and Rehabilitation/Brevard, Sava SeniorCare Administrative Services, LLC and Jan Does 1-10 (collectively “Defendants”), asserting claims for ordinary negligence. [Doc. 1-1 at ¶¶ 1, 7].

         The Defendants own, operate, or are employed at the Brian Center Health & Rehabilitation/Brevard. [Id. at ¶¶ 2-6]. The Plaintiff alleges that she was injured when she was attacked by a resident of the Defendants' facility identified in this case as “Mr. P.” [Id. at ¶ 1]. The Plaintiff claims that the Defendants knew Mr. P engaged in violent behavior but failed to warn her before she interacted with him. [Id. at ¶ 18, 33]. The Plaintiff argues that the Defendants' negligence violated the duty the Plaintiff was owed as either a business invitee or a licensee. [Id. at ¶ 30-31].

         As a result of the attack, the Plaintiff alleges she suffered “violent, serious, and severe injuries” that are “permanent.” [Doc. 1 at ¶¶ 27, 37]. The Plaintiff also alleges that her injuries “forced her to undergo surgery, receive medical treatment, and be unable to work “for an amount of time.” [Doc. 1-1 at ¶ 27, 28, 38, 41]. Since the attack, the Plaintiff alleges that she has incurred and is continuing to incur medical and hospital expenses in an unspecified amount. [Id. at ¶ 39].

         The Plaintiff's Complaint requested damages in excess of $25, 000. [Id. at ¶ 8]. The Civil Cover Sheet filed with the Complaint contradictorily stated that the amount in controversy did not exceed $15, 000. [Doc. 1-2 at 1]. As North Carolina law requires, the Complaint does not specifically demand an amount of damages, only a general amount in excess of $25, 000, so the precise amount in controversy is unclear on the face of the Complaint. [See Doc. 1-1; see also N.C. R. Civ. P. Rule 8(a)(2)].

         On October 1, 2018, six months after the Complaint was filed, the Plaintiff served the Defendants. [See Doc. 6.]. The Defendants answered on October 29, 2018. [Doc. 1-7]. On November 6, 2018, the Defendants served the Plaintiff with three Requests for Admission. In the requests, the Defendants asked the Plaintiff to admit that she would not seek more than $15, 000.00, $25, 000.00, and $74, 999.00, respectively. [See Doc. 1-3].[1]

         On December 7, 2018, the final day to file responses to the Defendants' Requests, the Plaintiff moved for an extension of time to answer. [Doc. 1-4]. Her motion was granted. [Id.]. On January 7, 2019, the Plaintiff filed Objections and Answers to the Defendants' Requests, arguing that the Requests were “outside the scope of Requests for Admissions allowed by Rule 36.” [Doc. 1-5].

         On February 6, 2019, the Defendants filed a Notice of Removal based on federal diversity jurisdiction under 28 U.S.C. § 1332(a). [Doc. 1]. In their Notice of Removal, the Defendants allege that diversity jurisdiction exists because the parties are completely diverse, [2] and the amount in controversy requirement is met “[b]ased on Plaintiff's responses to Defendants' Requests for Admission, as well as the type and severity of the injuries alleged.” (Doc.1 at ¶¶ 3-7, 11]. The Defendants also claim that the case was not originally removable based on the initial pleading. [Id. at ¶ 9]. According to the Defendants, the Plaintiff's Objections and Answers qualified as an “‘other paper' from which they [first ascertained] that the case [was] removable.” [Id. at 12]. Therefore, the Defendants argue that their Notice of Removal was timely because it was filed within thirty days after they received the Plaintiff's Objections and Answers. [Id. at ¶ 9].

         On March 7, 2019, the Plaintiff filed a Motion to Remand, arguing that that the Defendants' Notice of Removal was filed outside the time frame for removal under the 28 U.S.C. § 1446. [Doc. 6]. The Plaintiff also claims that she inadvertently checked the box on the Civil Cover Sheet indicating that she would seek less than $15, 000 in damages, but that she expressly asserted in her Complaint that she seeks damages in excess of $25, 000. [Id. at 5 n.2].

         On March 21, 2019, the Defendants responded to Plaintiff's Motion to Remand, arguing that their Notice of Removal was timely filed because it was filed within thirty days after the Defendants received the Plaintiff's Objections and Answers and thus ascertained that the case was removable. [See Doc. 10].

         Having been fully briefed, this matter is ripe for disposition.

         II. ...


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