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Freeman v. Ssc San Antonio Silver Creek Operating Gp LLC

United States District Court, Fifth Circuit

November 26, 2013

NORA FREEMAN, Plaintiff,
v.
SSC SAN ANTONIO SILVER CREEK OPERATING GP LLC, SSC SAN ANTONIO SILVER CREEK OPERATING LP, SMV SAN ANTONIO SILVER CREEK GP LLC, SMV SAN ANTONIO SILVER CREEK LP, SMV MANAGEMENT LLC, Defendants.

ORDER ON MOTION TO REMAND

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Plaintiff's motion to remand. Doc. No. 4. After careful consideration, the Court GRANTS the motion. Accordingly, the case is REMANDED to state court.

BACKGROUND

This lawsuit arises out of an accident Plaintiff Nora Freeman allegedly suffered during the course of her employment at the Silver Creek Manor Nursing Home. On July 11, 2013, Plaintiff filed a state court petition against SSC San Antonio Silver Creek Operating GP LLC, SSC San Antonio Silver Creek LP, SMV San Antonio Silver Creek GP LLC and SMV San Antonio LP (collectively, the "Silver Creek Manor Defendants"). Ms. Freeman also initially listed SMV Management LLC, a Texas resident, as a Defendant. On July 30, 2013, SMV Management LLC answered and denied having any association with the Silver Creek Manor Defendants. Doc. No. 1, Ex. 1. On August 2, 2013, the Silver Creek Manor Defendants filed an answer, purporting also to answer for SMV Management LLC. On August 13, 2013, counsel for the Silver Manor Creek Defendants requested that SMV Management LLC be removed from the suit. Doc. No. 4, Ex. E. Plaintiff complied and voluntarily non-suited SMV Management LLC on August 16, 2013. Doc. No. 4, Ex. F. The Silver Creek Manor Defendants received notice of the non-suit on August 22, 2013.

On September 23, 2013, the Silver Creek Manor Defendants filed a notice of removal on the basis of diversity jurisdiction. Doc. No. 1. Plaintiff subsequently filed this motion to remand contending that the Silver Creek Manor Defendants did not timely remove the case in compliance with 28 U.S.C. § 1446(b). Doc. No. 4. In addition, Plaintiff alleges that the Defendants have not met their burden of establishing complete diversity. Id.

DISCUSSION

The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Any ambiguities are to be construed against removal, as the removal statute should be strictly construed in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000). The removal statute generally mandates that a defendant remove a case within 30-days of receipt of an initial pleading. 28 U.S.C. § 1446(b). A case is removable from its inception if the initial pleadings reveal the basis for federal jurisdiction. Id.; Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (internal citation omitted). However, if the case is not removable when the initial pleadings are filed, the removal statute also provides:

A notice of removal may be filed within thirty days after receipt by 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)(3).

The timeliness of removal in this case is determined by when the 30-day removal clock began to run against the Silver Creek Manor Defendants. According to Plaintiff, the 30-day clock begins on the date that a defendant "learns of or should have learned of the improper joinder to file a notice of removal." Doc. No. 4, citing Ayers v. Sears, 571 F.Supp.2d 768, 772-73 (W.D. Tex. 2008). Plaintiff argues that the Silver Creek Manor Defendants were aware that the case was removable at the time the original petition was filed. Doc No. 4 at ¶16 ("The only parties who knew at the time the Complaint was filed that SMV Management was improperly joined... were each of the defendants."). In Ayers, a court in this district held that removing defendants had not met their burden of establishing the timeliness of removal because they had failed to specify when they learned of the alleged improper joinder. Ayers does not compel remand here. Unlike the defendants in Ayers, the Silver Creek Manor Defendants have alleged a specific time when they learned of removability: when they received notice that the non-diverse Defendant, SMV Management LLC, had been non-suited on August 22, 2013.

The Silver Creek Manor Defendants cite to the Fifth Circuit's decision in Chapman v. Powermatic, Inc., 969 F.2d.160, 163 (5th Cir. 1992), for the proposition that courts should not "inquire into what a particular defendant may or may not subjectively know, " regarding removability when the case is filed. In Chapman, the plaintiff seeking remand argued that the defendant, through the exercise of due diligence, could have found from the original complaint that the amount in controversy requirement for federal jurisdiction had been met. The Fifth Circuit rejected this argument, and instead held that the original complaint must "reveal on its face" that the case is removable in order for it to trigger the 30-day clock. Id. In this case, the Court finds that the state court petition did not reveal on its face that the case was removable because an in-state party (SMV Management LLC) was listed as a Defendant. Moreover, under Chapman, the Silver Creek Manor Defendants were under no obligation to affirmatively ascertain that SMV Management LLC was improperly joined when the case was filed.[1]

This does not end the inquiry because the 30-day removal clock can also begin when a party later learns that the case is removable.[2] In Bosky v. Kroger Tex., LP, 288 F.2d 208 (5th Cir. 2002), the Fifth Circuit held that later filings must make it "unequivocally clear" that the case can be removed before the 30-day clock begins to run. It is well settled that a case is removable absent complete diversity if the non-diverse party is improperly joined. Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004). Section 1446 provides that the 30-day clock begins to run from when "it may first be ascertained" that the case is removable. 28 U.S.C. § 1446(b)(3). Thus, the 30-day clock starts when a party may first ascertain that the non-diverse party is improperly joined.

Defendants argue that their August 22, 2013, receipt of Plaintiff's voluntary non-suit of SMV Management LLC "was the first notice that the case had become removable." Doc. No. 6. The Court disagrees. Defendants received notice of the improper joinder (and thus removability) when SMV Management LLC individually answered and denied any relationship with the other Defendants. At this moment, the Silver Creek Manor Defendants had all the knowledge they needed to make it "unequivocally clear" that the non-diverse party had been improperly joined, and that removal was possible under Smallwood.

In Fernando Garcia v. MVT Services, Inc., 589 F.Supp.2d 797 (W.D. Tex. 2008), the removing defendants argued that removal was timely because they only received notice of removability when the non-diverse defendant was non-suited. The court rejected this argument. In Fernando Garcia, the non-diverse defendant was a party to an agreement that released it from liability in the case. The court found that when the removing defendants received this document, they became aware that the non-diverse defendant was not properly a party to the case and that therefore removal was possible. Id. at 805. Therefore, the 30-day clock began before the nonsuit actually occurred. Accordingly, ...


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