Opinion
No. 4:04-CV-776-A.
December 30, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of plaintiff, Joseph W. King, Jr., to remand. Having considered the motion, the response and supplemental response of defendants, Cottman Transmission Centers, Inc. ("CTC") and Cottman Transmission Systems, LLC ("CTS"), the record, and applicable authorities, the court concludes that the motion should be granted.
Plaintiff has not filed a reply.
I. BACKGROUND
Plaintiff is a citizen of Texas. CTC is a corporation organized under the laws of Pennsylvania and having its principle place of business in Pennsylvania. See Notice of Removal at ¶ 6. CTS is a limited liability company organized under the laws of Delaware and having its principal place of business in Pennsylvania. See Notice of Removal at ¶ 7.
Plaintiff initially alleged that CTC was a Texas corporation. See Pl.'s Original Petition at ¶ 3. However, he apparently concedes diversity of citizenship, as his motion to remand does not discuss the issue.
On October 14, 2004, plaintiff filed his original petition in the County Court of Law No. 1 of Tarrant County, Texas. Defendants received a copy of the petition by facsimile that same day, but the date they were served is in dispute. On October 25, 2004, defendants filed their notice of removal. On November 4, 2004, defendants filed a motion to dismiss or, in the alternative, to transfer venue. On November 9, 2004, plaintiff filed his motion to remand.
II. ANALYSIS
A. Rule 81 (c)
Plaintiff first argues that defendants failed to comply with the procedures for removal, because they failed to file an answer within the time period required by Federal Rule of Civil Procedure 81(c). Rule 81(c) states:
. . . In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest. . . .
In this case the twenty-day period should run from the time that defendants were served. See Silva v. Madison, 69 F.3d 1368, 1376-77 (7th Cir. 1995) (holding that Rule 81(c) affords the defendant at least 20 days after service of process to respond),cited with approval by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999) (holding that 30-day removal period of 28 U.S.C. § 1146 began to run when defendant was formally served by certified mail rather than when defendant earlier received faxed, file-stamped copy of complaint).
The available record is unclear as to when defendants were served, but the court declines to decide the issue. Plaintiff has failed to provide any authority that a failure to comply with Rule 81(c) justifies remand, and the court is aware of none. Although statutes governing removal jurisdiction are strictly construed, see Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 104, 108-09 (1941), Rule 81(c) is not such a statute. Rather, it merely governs procedures after removal. Whether or not defendants failed to comply with Rule 18(c), any such failure would not justify remand of this action.
The notice of removal states that "[d]efendants were served with . . . a copy of the initial pleading . . . on or about October 14, 2004." Notice of Removal at ¶ 1. However, their response to plaintiff's motion to remand states that they received a copy of the petition by facsimile on October 14, but were not served until October 25, 2004. Def.'s Resp. at 1; Mem. Supp. Def.'s Resp. at 2.
B. Amount in Controversy
Plaintiff also argues that defendants have failed to prove by a preponderance of evidence that the amount in controversy exceeds $75,000, as required for diversity jurisdiction. See 28 U.S.C. § 1332. Where, as here, the plaintiff fails to allege a specific amount of damages, the Fifth Circuit has prescribed the following procedure for determining the amount in controversy:
In removal practice, when a complaint does not allege a specific amount of damages, the party invoking federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. The district court must first examine the complaint to determine whether it is "facially apparent" that the claims exceed the jurisdictional amount. If it is not thus apparent, the court may rely on "summary judgment-type" evidence to ascertain the amount in controversy.White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003) (citing St. Paul Reinsurance Co. Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); De Aguilar v. Boeing Co., 11 F.3d 55, 57-58 (5th Cir. 1993)). The amount in controversy should be based on the time of filing. See White, 319 F.3d at 676.
In the present case, defendants based removal solely on the argument that it is facially apparent that the claims in plaintiff's original petition exceed $75,000. Because the court was not convinced, it held a telephone conference on December 22, 2004, in an attempt to clarify the amount of damages that plaintiff was seeking with regard to each of his claims. Based on the representations of the parties during such conference, the court ordered plaintiff to file an amended complaint and affidavit clarifying the amount of damages he sought. Plaintiff filed an amended complaint and affidavit on December 28, 2004. Having reviewed those documents, the court concludes that they do not merely clarify the claims in his original petition, but rather change those claims. Because removal jurisdiction must be based on facts at the time of removal, see White, 319 F.3d at 676, the issue before this court remains whether the record shows that the claims in plaintiff's original petition likely exceeds $75,000.
Having reviewed plaintiff's original petition, the notice of removal, defendants' response and supplemental response, and applicable authorities, the court concludes that it is not facially apparent from plaintiff's original petition that his claims likely exceed $75,000. With the exception of attorney's fees, all of defendants' estimates of plaintiff's alleged damages are purely speculative. See Notice of Removal at ¶ 8; Mem. Supp. Defs.' Resp. at 4-5.
The court notes that counsel for plaintiff represented to, and assured, the court during the December 22, 2004, telephone conference that plaintiff is not seeking to recover, and will not be seeking to recover in this action if it is remanded, in excess of $75,000.00, including whatever restitution he might claim and whatever attorney's fees he might seek. Presumably that representation and assurance of counsel will be taken into account in the future handling of this action in the state court. If it turns out that, contrary to the representation and assurance of plaintiff's counsel to the court, plaintiff seeks to recover in this action once remanded to the state court more than $75,000.00 in total, defendants presumably will evaluate whether another removal to this court at that time would be appropriate.
Based on the foregoing, the court concludes that it lacks jurisdiction because the amount in controversy does not exceed $75,000.00.
III. ORDER
For the reasons discussed, the court concludes that plaintiff's motion to remand should be granted. Accordingly,
The court ORDERS that the above-captioned action be, and is hereby, remanded to the County Court at Law No. 1 of Tarrant County, Texas.