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Estrada v. Diversicare Hillcrest, LLC

United States District Court, W.D. Texas, Austin Division

April 6, 2017

MARY ESTRADA, Individually and as Representative of the Estate of Paul Trevino, Deceased, SENAIDA MARTINEZ, and CONCEPCION TREVINO, Plaintiffs,
v.
DIVERSICARE HILLCREST, LLC d/b/a Hillcrest Manor Nursing & Rehabilitation Center, WALTER SMITH, HILL-ROM COMPANY, INC., and LINAK U.S., INC, Defendants.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiffs Mary Estrada, individually and as representative of the Estate of Paul Trevino, Senaida Martinez, and Concepcion Trevino (Plaintiffs)' Motion to Remand [#13], Defendant Hill-Rom Company, Inc. (Hill-Rom)'s Response [#18] in opposition, Defendant Linak U.S., Inc. (Linak)'s Response [#19] in opposition, and Plaintiffs' Reply [#22] in support. Having considered the documents, the case file as a whole, and the applicable law, the Court enters the following opinion and order.

         Background

         This case arises from a nursing home accident. Paul Trevino (Trevino) was a patient at Defendant Diversicare Hillcrest, LLC d/b/a Hillcrest Manor Nursing & Rehabilitation Center (Hillcrest). Mot. Remand [#13] at 2. Defendant Walter Smith (Smith) is an employee of Hillcrest. Id. On January 27, 2014, Smith used a Viking M Portable Lift manufactured by Hill-Rom and Linak to transfer Trevino from his wheelchair to his bed. Id. Plaintiffs allege "[d]uring the lift transfer, due to the negligence of [Hillcrest and/or Smith], and/or due to the strict product liability and/or negligence of [Hill-Rom] and/or [Linak], " Trevino fell from the lift onto the floor and was seriously injured. Not. Removal [#1-2] Ex. 1 (Original Pet.) ¶ 14. CT scans revealed Trevino suffered a subarachnoid hemorrhage and subdural hematoma in his head, a left pleural effusion, and a possible left proximal clavicle fracture. Id. Trevino died from these injuries on February 4, 2014, nine days after he fell off the lift. Id. ¶ 15. An autopsy concluded his death was caused by the blunt force head injury he suffered when he fell to the floor. Id.

         Plaintiffs filed their complaint in state court on January 19, 2016, bringing negligence and product liability claims against Hillcrest, Smith, Hill-Rom, and Linak. Id. ¶¶ 16-37. Plaintiffs are all citizens of Texas. Not. Removal [#1] ¶ 2. Smith is believed to be a citizen of Texas, and Hillcrest's citizenship is unknown. Id. ¶¶ 5-6. Hill-Rom is a corporation organized and incorporated under the laws of Indiana with its principal place of business located in Indiana. Id. ¶ 3. Linak is a corporation organized and incorporated under the laws of Delaware with its principal place of business located in Kentucky. Id. ¶ 4.

         The parties engaged in mediation on September 29, 2016, but were unable to agree to a settlement. Mot. Remand [#13] at 3. On November 22, 2016, Plaintiffs reached an agreement to settle their claims against Hillcrest and Smith. Id. On December 6, 2016, Plaintiffs sent an email to counsel for Hill-Rom and Linak-the remaining defendants-stating, "Plaintiffs have reached a settlement with the facility." Id. [#13-2] Ex. B (December 6 Email) at 1 (emphasis added).[1] The December 6 Email also explained Steve Darling, counsel for Hillcrest and Smith, would turn over the lift, which had been in Hillcrest's possession up until the settlement, to Plaintiffs if all the parties agreed. Id. Hill-Rom agreed to this preservation proposal on December 23, 2016, and Linak agreed on December 27, 2016. Id. [#13-5] Ex. E at 1; see id. [#13-8] Ex. H at 1. Apart from these responses, the parties did not exchange any emails, documents, or phone calls from December 6, 2016, to January 3, 2017. Id. [#13-1] Ex. A (Breen Decl.) ¶ 6.

         On January 3, 2017, Hill-Rom sent an email to Plaintiffs and Linak stating, "Now that Plaintiffs have settled with the Hillcrest defendants and Walter Smith, the case becomes removable to federal court." Id. [#13-9] Ex. I (January 3 Email) at 1. Later, on January 18, 2017, Linak sent an email to Plaintiffs, stating "Plaintiffs counsel has notified us that the nursing home facility has settled all claims with the Plaintiff. I have not received notification that the individual, Walter Smith, has settled any claims against him with the Plaintiff. Can you please let me know if Walter Smith settled all claims with the Plaintiff." Hill-Rom Resp. [#18-3] Ex. 3 (January 18 Email) at 1. A few hours later, Plaintiffs confirmed they settled with both Hillcrest and Smith. Id. ("Yes, there is a settlement agreement signed by Plaintiffs and the settlement agreement includes Walter Smith and the facility.").

         When Plaintiffs first filed their action, diversity jurisdiction did not exist because Plaintiffs and Smith are all citizens of Texas. However, after Plaintiffs' settlement with Hillcrest and Smith, Linak, a resident of Delaware and Kentucky, and Hill-Rom, a resident of Indiana, were the only remaining defendants. Based on this complete diversity, Linak, with Hill-Rom's consent, removed the case to federal court on January 18, 2017. See Not. Removal [#1] ¶¶ 13-14.

         Analysis

         I. Legal Standard

         A defendant may remove a civil action from state court to federal court if the action originally could have been brought in federal court. See 28 U.S.C. § 1441(a). Federal courts have original jurisdiction in civil actions between "citizens of different states . . . where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs." Id. § 1332(a)(1). "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

         There are two ways a case can be removed under 28 U.S.C. § 1446(b). First, a defendant may file a notice of removal within 30 days after the defendant receives "a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Id. § 1441(b)(1). Second, if the initial pleading is not removable, a defendant may file a notice of removal within 30 days after the defendant receives "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." Id. § 1441(b)(3). "Other paper" under § 1446(b)(3) may be discovery responses, pleadings, deposition transcripts, and attorney communications. Still v. Ga.-Pac. Corp., 965 F.Supp. 878, 881 (S.D.Miss. 1997) (citing cases). Further, "the information supporting removal in a copy of an amended pleading, motion, order or other paper must be 'unequivocally clear and certain' to start the time limit running for a notice of removal . . . ." Bosky v. Kroger Tex., L.P., 288 F.3d 208, 211 (5th Cir. 2002); see also Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C v. Integrated Health Servs. at Hanover House, Inc., No. 3:08-CV-326-KC, 2008 WL 5683482, at *3 (W.D. Tex. Oct. 17, 2008). Finally, "[a] case may not be removed under subsection (b)(3) on the basis of [diversity] jurisdiction ... more than 1 year after commencement of the action." 28 U.S.C. § 1446(c).

         II. Application

         Linak argues removal is proper because the case was removed within 30 days of the receipt of "other paper" and within 1 year from when the case was filed. Not. Removal [#1] ¶¶ 12-13; Linak Resp. [#19] at 6. Linak alleges the January 18 Email-stating, "Yes, there is a settlement agreement signed by Plaintiffs and the settlement agreement includes Walter Smith and the facility"-constituted "other paper" from which Linak first ascertained the case was removable.[2] Because Linak removed the same day, January 18, 2017, Linak argues the case was removed within 30 days of ...


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