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Jung v. 24 Hour Fitness USA, Inc.

United States District Court, E.D. Texas, Sherman Division

December 19, 2017

SUSAN JUNG
v.
24 HOUR FITNESS USA, INC.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff Susan Jung's Motion to Remand (Dkt. #8). After reviewing the relevant pleadings and motion, the Court finds the motion should be denied.

         BACKGROUND

         On August 4, 2017, [1] Plaintiff filed her Original Petition (Dkt. #1, Exhibit 4) in Denton County District Court, and on October 4, 2017, filed her First Amended Petition (Dkt. #1, Exhibit 6). Defendant 24 Hour Fitness USA, Inc. filed its Original Answer (Dkt. #1, Exhibit 5) on October 3, 2017 and First Amended Original Answer (Dkt. #1, Exhibit 7) on October 5, 2017. Additionally, Defendant filed its Notice of Removal (Dkt. #1) on November 3, 2017. As a result, Plaintiff filed her Motion to Remand (Dkt. #8) on November 15, 2017, and Defendant filed its Response (Dkt. #10) on November 29, 2017.

         LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)). “In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction.” Humphrey v. Tex. Gas Serv., No. 1:14-CV-485, 2014 WL 12687831, at *2 (E.D. Tex. Dec. 11, 2014) (citations omitted). The Court “must presume that a suit lies outside [its] limited jurisdiction, ” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001), and “[a]ny ambiguities are construed against removal and in favor of remand to state court.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). “When considering a motion to remand, the removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Humphrey, 2014 WL 12687831, at *2 (quoting Manguno, 276 F.3d at 723).

         ANALYSIS

         Plaintiff claims that her Original Petition (Dkt. #1, Exhibit 4) made clear the amount in controversy requirement was met, which triggered the thirty-day clock. Further, Plaintiff contends that if the Court disagrees and finds the Original Petition (Dkt. #1, Exhibit 4) did not make the amount in controversy clear, i.e., did not trigger the thirty-day removal deadline, then the First Amended Petition (Dkt. #1, Exhibit 6) does not satisfy the amount in controversy because the difference between the two petitions is minimal.[2] In other words, Plaintiff avers that “either Plaintiff's Original Petition already met the amount in controversy requirement or it did not and the First Amended Petition did nothing to change that.” (Dkt. #8 at ¶ 10). The Court finds Plaintiff's arguments are both misplaced and misguided.

         I. Timeliness Dispute

         Plaintiff argues her Original Petition started the thirty-day removal deadline and that Defendant untimely filed its Notice of Removal. Thus, remand is required. Conversely, Defendant contends it timely filed its Notice of Removal.

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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). In other words,

[I]f the initial pleading sets forth a claim that triggers the removal clock, the defendant must file notice of removal within thirty days of receiving it. If the initial pleading did not trigger the thirty-day removal clock, a notice of removal must be filed within thirty days of the defendant's receipt of a ...

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