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Everett Financial, Inc. v. Kocher

United States District Court, N.D. Texas, Dallas Division

September 20, 2019

JOHN E. KOCHER, Defendant.



         This is an order concerning a motion to remand the case to state court. The Court concludes that Defendant improperly removed the case based on the same grounds as its first removal. Therefore, the Court hereby GRANTS the motion to remand (Doc. 4) and orders the case to be remanded to the 298th District Court of Dallas County, Texas. The Court, however, DENIES Plaintiff's motion for attorney's fees (Doc. 4).


         This is the second time this action has been removed based on diversity jurisdiction. Doc. 4, Pl.'s Mot. To Remand and Br. in Supp. (“Pl.'s Br.”), 3. Both times, the Defendant, John E. Kocher, has alleged that the amount-in-controversy exceeds $75, 000, on the basis that the Plaintiff, Everett Financial, Inc. d/b/a Supreme Lending, is seeking attorney's fees over $75, 000 and is attempting to recover those fees. Id. In the first action, Judge Godbey ordered the case be remanded, concluding that this claim “[fell] well short of the ‘summary judgment type evidence' required to establish that the amount-in-controversy is satisfied.” Doc. 5, App. in Supp. of Remand, 102-03 (“App.”).

         Following the remand, Defendant posed an interrogatory to Plaintiff regarding attorney's fees incurred, and Plaintiff responded that it “incurred approximately $125, 000 in attorneys' fees and $5, 000 in costs of court.” Doc. 4, Pl.'s Br., 3. This interrogatory was answered on May 29, 2019. Doc. 5, App., 105. Based on this new evidence, Defendant again removed the case, this time on June 27, 2019. Doc. 4, Pl.'s Br., 3. As the case was removed within thirty days of obtaining the information that would be the basis for federal court jurisdiction, removal here ordinarily would have been be timely. See 28 U.S.C. § 1441(a). Plaintiff does not dispute that the requirements for diversity of citizenship have been satisfied. Doc. 4, Pl.'s Br., 6.

         Nevertheless, Plaintiff filed a motion to remand (Doc. 4), on three grounds. First, Plaintiff argues that permitting Defendant to rely solely on attorney's fees to establish the amount-in-controversy contravenes the policies underlying removal. Id. at 6. Second, Plaintiff argues that because Defendant has already sought removal on the same grounds (that the attorney's fees met the amount-in-controversy requirement), Defendant is barred from removing on that same basis again. Id. at 8. Third, the interrogatory does not provide sufficient evidence that Plaintiff will seek more than $75, 000 in attorneys fees, and thus Defendant has not satisfied the amount-in-controversy requirement. Id. at 10. Plaintiff also asks for attorney's fees associated with the alleged improper removal. Id.

         Plaintiff filed its motion on July 25, 2019 (Doc. 4), and Defendant filed its response on August 22, 2019 (Doc. 8). More than fourteen days have passed since Defendant has filed its response, and Plaintiff has not filed a reply. The motion is now ripe.


         “‘Federal courts are courts of limited jurisdiction.'” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 537 (5th Cir. 2017) (quoting Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)). Thus, courts “‘must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.'” Id.

         The federal removal statute, 28 U.S.C. § 1441(a), permits a defendant to remove any civil action that falls within the original jurisdiction of the district courts. District courts have original jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75, 000 . . . and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         To timely remove a case, a defendant must file a notice of removal within thirty days after the receipt of the initial pleading. 28 U.S.C. § 1446(b)(1). But if a case is not removable based on the initial pleading, a defendant may remove a case within thirty days after receiving “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. § 1446(b)(3). Therefore, even if a removed case has already been remanded, “it is possible that ‘an amended pleading, motion, order or other paper' may render the case removable anew under 28 U.S.C. § 1446(b).” Kindred Hosps. Ltd. P'ship v. Aetna Life Ins. Co., 2018 WL 4215118, at *3 (N.D. Tex. Sept. 5, 2018) (Fitzwater, J.) (citation omitted). The Fifth Circuit has clarified that a defendant may “‘seek subsequent removals after remand' so long as the second removal is not sought ‘on the same ground.'” Id. (quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996)). “‘Removal ‘on the same ground' does not prohibit removal based on the same theory of federal jurisdiction (i.e., federal question or diversity jurisdiction), but it forecloses removal absent ‘a different set of facts establishing a new ground for removal.'” Kindred Hosps., 2018 WL 4215118, at *3 (citing S.W.S. Erectors, 72 F.3d at 492-94).

         In addition, motions for remand are governed by 28 U.S.C. § 1447(c), which provides that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “Because removal raises significant federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor of remand.” Coffman v. Dole Fresh Fruit Co., 927 F.Supp.2d 427, 430-31 (E.D. Tex. 2013) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941) and Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007)). Such orders are “not reviewable on appeal or otherwise.” § 1447(d).

         III. ANALYSIS

         A. Does the Interrogatory Provides a New ...

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