United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
August 4, 2017,  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.
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).
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. 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.
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 ...