United States District Court, N.D. Texas, Dallas Division
BRANDON BONEY AND CRYSTAL JONES-BONEY, as next friends of B.B., a minor
LOWE'S HOME CENTERS LLC
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE.
Order addresses Plaintiff Brandon Boney's
("Plaintiff," and together with Crystal
Jones-Boney, "Plaintiffs") Motion to Remand [ECF
No, 4]. For the following reasons, the Court grants the
9, 2018, B.B,, a minor, filed this lawsuit in the 101st
Judicial District Court of Dallas, County, Texas.
See Notice of Removal ¶ 1. In the Original
Petition, B.B. asserted a claim of negligence and sought to
recover unspecified damages. See Id. On September
10, 2018, Plaintiffs, as next friends of B.B., filed an
Amended Petition that also asserted a claim of negligence and
sought to recover unspecified damages. See Id.
¶ 4. On May 17, 2019, shortly after retaining additional
counsel, Plaintiffs filed a Second Amended Petition that
added a claim for gross negligence and alleged damages in an
amount of "more than $100, 000, 00, but less than $200,
000.00." See Id. ¶ 5; Ex. A-1.
20, 2019-more than one year after Plaintiff filed the
Original Petition- Defendant Lowe's Home Centers, LLC
("Defendant") removed the above-captioned action
based on diversity. See Id. ¶¶ 10-13.
According to the Notice of Removal, the amount-in-controversy
exceeds $75, 000 and complete diversity exists between the
parties: Plaintiffs are citizens of Texas and Defendant is a
North Carolina corporation with a principal place of business
in North Carolina. See Id. ¶¶ 10-12.
Plaintiff filed his Motion to Remand on June 17, 2019, which
is now fully briefed before this Court.
Fifth Circuit has consistently held that removal statutes
should be strictly construed against removal such that any
ambiguity is resolved in favor of remand. See Bosky v.
Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002)
(citing Eastus v. Blue Bell Creameries, L.P., 97
F.3d 100, 106 (5th Cir. 1996)). Therefore, the removing party
bears the burden of establishing jurisdiction and compliance
with the requirements of the removal statute. Shearer v.
Sw. Serv. Life. Ins., 516 F.3d 276, 278 (5th Cir. 2008).
argues that remand is proper because Defendant removed the
case more than one year after Plaintiffs filed their Original
Petition, See Mot. to Remand 1. Pursuant to 28
U.S.C. § 1446(c)(1), "[a] case may not be removed
... on the basis of [diversity] jurisdiction . ., more than
[one] year after the commencement of the action, unless the
district court finds that the plaintiff has acted in bad
faith in order to prevent a defendant from removing the
action." Here, Plaintiffs filed their Original Petition
on May 9, 2018, and Defendant removed this case on May 20,
2019, See Notice of Removal ¶¶ 1, 10-13.
Because more than one year elapsed between commencement of
the action and the date of removal, the Court must remand
unless it finds "bad faith." 28 U.S.C. §
contends that Plaintiff acted in bad faith by
"deliberately fail[ing] to disclose the actual amount in
controversy to prevent removal." Id. §
1446(c)(3)(B). "Courts must determine whether bad faith
exists on a case-by-case basis, balancing the bad-faith
exception with 'the general rule that removal
jurisdiction is to be strictly construed [in favor of
remand], ....'" Vallecillo v. Wells Fargo Home
Mort. Fin., No. 5:16-CV-935-DAE, 2017 WL 9935522, at *2
(W.D. Tex. Sept. 18, 2017) (quoting Carey v. Allstate
Ins., Civ. A. No. 2:13-CV-2293, 2013 WL 5970487, at *3
(W.D. La. Nov. 7, 2013)) (first alteration in original).
general, a determination of bad faith is subject to a high
burden, and courts are reluctant to find a party acted in bad
faith without '"clear and convincing
proof.'" See Bucklew v. St. Clair, Civ. A.
No. 3:18-CV-2117-N (BH), 2019 WL 2724067, at *4 (N.D. Tex.
May 29, 2019) (quoting Crowe v. Smith, 261 F.3d 558,
563 (5th Cir. 2001)) (analyzing bad faith in the context of
imposing sanctions against a party). While there is no clear
standard for determining bad faith in the § 1446(c)(1)
context, courts in the Fifth Circuit have focused their
inquiry on whether the plaintiffs conduct indicates
manipulation of the removal statute. See Prescia v. Old
Republic Ins., Civ. A. No. 18-593-BAJ-EWD, 2018 WL
7001775, at *3 (M.D. La. Dec. 6, 2018) (citation omitted);
Rantz v. Shield Coat, Inc., Civ. A. No. 17-3338,
2017 WL 3188415, at *5 (E.D. La. July 26, 2017) (citation
omitted). As characterized by another court, "[c]onduct
rises to the level of bad faith when a party makes a
transparent attempt to avoid federal jurisdiction."
Rantz, 2017 WL 3188415, at *5 (quoting Kidwai v.
Fed. Nat'l Mortg. Ass'n, Civ. A. No.
SA-13-CV-972-XR, 2014 WL 252026, at *2 (W.D. Tex. Jan. 22,
2014)). The burden of showing that Plaintiff acted in bad
faith to prevent removal lies with the Defendant.
Court finds that Defendant has not met that burden. While
Defendant may have been uncertain as to damages until the
one-year deadline passed, see Resp. to Mot. to
Remand ("Resp.") ¶ 13, it has proffered no
evidence that Plaintiff knew that damages were above $75, 000
or tried to conceal that fact. See Space Maker Designs,
Inc. v. Steel King Indus., Inc., Civ. A. No.
3:09-CV-2386-B, 2010 WL 2680098, at *3 (N.D. Tex. July 6,
2010). Rather, Defendant asks the Court to infer bad faith
from medical bills, settlement discussions, and an unanswered
July 16, 2018, email that asked if Plaintiff would be willing
to stipulate to damages being under $75, 000. See
Resp. ¶¶ 1, 3-4, 6. But that evidence is neither an
admission that the amount in controversy is less than $75,
000, nor is it indicative of active concealment.
Court notes that Defendant apparently did not take steps to
serve discovery to determine the amount in controversy, nor
did it file a special exception asking "the [Plaintiff]
to amend so as to specify the maximum amount claimed."
Tex.R.Civ.P. 47. Defendant's lack of effort to ascertain
damages "belies its current argument . . . that
Plaintiffs failure to answer a single [email] was a
deliberate effort by Plaintiff to keep [Defendant] from
learning the 'actual' amount in controversy,"
Hajdasz v. Magic Burgers, LLC, Case No:
6:18-cv-1755-Orl-22KRS, 2018 WL 7436133, at *8 (M.D. Fla.
Dec. 10, 2018) (citations omitted); see also Hubbard v.
Diaz, Civ. A. No. 16-3006 (CCC-JBC), 2017 WL 436252, at
*2 (D.N.J. Jan. 31, 2017) (holding defendants did not meet
their burden of proving bad faith in part because defendants
had not made "repeated attempts" to secure the
requested discovery). The appearance of additional counsel
also militates against a finding of bad faith. See
Notice of Removal Ex. A-1.
although Plaintiff did not plead damages until one year after
the removal deadline, id. ¶¶ 2, 7, the
"mere failure to plead the amount of damages in the
original and amended petition" does not rise to the
level of concealment that would merit a finding of bad faith.
See Space Maker, 2010 WL 2680098, at *2.
(citing Morgan Bldgs. & Spas, Inc. v. Advantage Mfg.,
Inc., No. 3:06-CV-0149-D, 2006 WL 1140657, at *1 (N.D.
Tex. May 1, 2006)). Accordingly, despite Plaintiffs belated
amendment, Defendant has not met its burden of proving that
Plaintiff acted in bad faith by "deliberately fail[ing]
to disclose the actual amount in controversy to prevent
removal." 28 U.S.C. § 1446(c)(3)(B). Therefore, the
Court grants Plaintiffs Motion to Remand.