Pool v. US Investigation Services

Full title: SANDRA POOL, Plaintiff, v. US INVESTIGATION SERVICES, L.L.C., Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Jan 3, 2005

Civil Action No. 3:04-CV-2332-M (N.D. Tex. Jan. 3, 2005)

Opinion

Civil Action No. 3:04-CV-2332-M.

January 3, 2005

MEMORANDUM OPINION AND ORDER

BARBARA LYNN, District Judge

Before the Court is Plaintiff's Motion to Remand, filed on November 9, 2004. For the following reasons, the Court is of the opinion that Plaintiff's Motion should be DENIED.

Plaintiff filed this action in state court on December 29, 2003. Her Petition asserts claims against Defendant, her former employer, for wrongful discharge, retaliation, intentional infliction of emotional distress, and punitive damages. Pursuant to Tex. R. Civ. P. 47(b), Plaintiff's Petition does not purport to seek a certain sum of damages. Rather, the Petition states that Plaintiff seeks "monetary relief aggregating more than $50,000", for purposes of requesting that the state court case be administered under Discovery Control Plan Level 2.

Defendant filed a Notice of Removal on October 29, 2004, ten months after Plaintiff filed her Petition in state court. The parties agree and the Court finds that the parties are diverse and the amount in controversy in the case exceeds $75,000. See 28 U.S.C.A. § 1332 (2004). However, the parties dispute whether Defendant's Notice of Removal was timely filed. Under 28 U.S.C. § 1446(b), a Notice of Removal must be filed within thirty days of the date when a defendant is served with a state court Petition, if the Petition provides a basis for removal. If the Petition does not provide a basis for removal, a Notice of Removal may be filed "within thirty 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) (2004).

Plaintiff argues Defendant's Notice of Removal was untimely because at the time of service of the Petition, Defendant had constructive notice that Plaintiff's claims would exceed $75,000. According to Plaintiff, Defendant knew Plaintiff's annual salary exceeded $30,000, and that she was seeking back pay, front pay and punitive damages under the Texas Human Rights Act. Plaintiff argues Defendant was required to remove the case, if at all, by late January, 2004. In response, Defendant argues that it was unaware Plaintiff was seeking more than $75,000 in damages until after it took Plaintiff's deposition on October 1, 2004.

The Court finds that Defendant's Notice of Removal was timely filed. The Fifth Circuit has held that the thirty-day limitations period for filing a Notice of Removal does not begin running on the date a plaintiff files her state court Petition unless the Petition affirmatively reveals the basis for federal jurisdiction. Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5^th Cir. 1992). Accordingly, the Court is not required to inquire as to Defendant's independent knowledge at the time Plaintiff filed her Petition. See Id. (diversity case was removable after the expiration of thirty days, even though the defendant knew the plaintiff incurred medical bills in excess of $80,000, because the Petition did not specify the amount of damages sought). When the Petition is ambiguous, the clock begins running when a defendant receives a pleading or some other document that makes it "unequivocally clear and certain" that the case is removable. Brosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).

Plaintiff's Petition did not facially reveal that her claims exceeded $75,000. The Petition stated only that her claims would exceed $50,000. The Court will not impute additional knowledge to Defendant. Furthermore, it is undisputed that Plaintiff's deposition constituted the first time Plaintiff made an unequivocally clear and certain statement that she was seeking damages in excess of $75,000. In the Fifth Circuit, a transcript of a deposition qualifies under 28 U.S.C. § 1446(b) as a "paper from which it may first be ascertained that the case is one which is or has become removable". See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5^th Cir. 1996). It is that "paper", and not the oral testimony that preceded receipt of the transcript, which provided the statutory notice to support removal. Thus, Plaintiff's case became removable under the statute on the date when Defendant received the transcript of Plaintiff's deposition, October 29, 2004.

Because Defendant's Notice of Removal was filed within thirty days of the date when Defendant received Plaintiff' deposition transcript, the Notice of Removal was timely under 28 U.S.C. § 1446(b). Plaintiff's Motion to Remand is therefore DENIED.

SO ORDERED.