United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Plaintiff's
Motion to Remand. [Doc. 6]. The Defendants oppose the
Plaintiff's Motion. [Doc. 10].
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].
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 ¶
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
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.
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].
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.
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,  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
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].
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].
been fully briefed, this matter is ripe for disposition.