United States District Court, W.D. Texas, Austin Division
MARY ESTRADA, Individually and as Representative of the Estate of Paul Trevino, Deceased, SENAIDA MARTINEZ, and CONCEPCION TREVINO, Plaintiffs,
DIVERSICARE HILLCREST, LLC d/b/a Hillcrest Manor Nursing & Rehabilitation Center, WALTER SMITH, HILL-ROM COMPANY, INC., and LINAK U.S., INC, Defendants.
SPARKS UNITED STATES DISTRICT JUDGE
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.
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.
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.
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). 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.
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.").
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.
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).
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).
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. Because Linak removed the same day,
January 18, 2017, Linak argues the case was removed within 30
days of ...