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Moser v. Realty Income Corp.

United States District Court, S.D. Indiana, Indianapolis Division

November 29, 2018

MELISSA MOSER, and MAX MOSER, II, Plaintiffs,
v.
REALTY INCOME CORPORATION, and AMERICAN MULTI-CINEMA, INC., Defendants.

          ORDER DENYING MOTION FOR REMAND

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Plaintiffs' Motion for Remand to Bartholomew County Superior Court No. 1, filed pursuant to 28 U.S.C. § 1447 in Response to Defendants' Notice of Removal Dated June 26, 2018. (Filing No. 11). Plaintiffs Melissa Moser and Max Moser, II (collectively, “Plaintiffs”) filed a premises liability Complaint against Defendants Realty Income Corporation and American Multi-Cinema, Inc. (collectively, “Defendants”) on June 28, 2017, in Bartholomew County Superior Court (Filing No. 1-1 at 4). On June 26, 2018, Defendants filed their Notice of Removal and removed the lawsuit from state court to this Court based on diversity jurisdiction (Filing No. 1). Twenty-nine days later, on July 25, 2018, Plaintiffs filed a Motion for Remand, arguing that jurisdictional deficiencies require that this case be remanded to state court. For the following reasons, the Plaintiffs' Motion for Remand is denied.

         I. LEGAL STANDARDS

         “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         “A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal . . . .” 28 U.S.C. § 1446(a).

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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)(3). “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action . . . .” 28 U.S.C. § 1446(c)(1).

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If 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).

         II. DISCUSSION

         This case was removed by the Defendants to this Court based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). The Plaintiffs argue that remand of the case to state court is necessary because the Defendants failed to satisfy the jurisdictional requirements at the time of removal.

         First, the Plaintiffs argue that remand is required because the amount in controversy requirement was not satisfied by the Defendants. On June 18, 2018, the Plaintiffs issued to the Defendants a “confidential settlement offer” as a precondition to establishing a mediation date with a proposed mediator. The letter was issued with the understanding that it would be kept confidential. The letter indicated that Plaintiffs would “resolve all claims” for a “full and final settlement” of $135, 000.00 (Filing No. 16-1). Based on this $135, 000.00 settlement offer, the Defendants filed the Notice of Removal, asserting that they now were able to ascertain for the first time that the case was one which was removable.

         The Plaintiffs argue that, when determining jurisdiction, the Court may consider only evidence that was available at the time of removal, and their letter cannot be considered when determining jurisdiction because it was confidential, it was made in the course of settlement negotiations (and therefore is inadmissible under Federal Rule of Evidence 408), and it is not an “other paper” under 28 U.S.C. § 1446(b)(3). They also argue that the Court's consideration of the settlement offer letter would cut against a public policy that favors settlement negotiations and settling cases.

         The Plaintiffs' arguments have been resolved against them by controlling Seventh Circuit precedent, and this Court need not look any further to other jurisdictions for guidance. See Grinnell Mut. Reinsurance Co. v. Haight, 697 F.3d 582, 585 (7th Cir. 2012) (“Although settlement negotiations are not admissible at trial pursuant to Federal Rule of Evidence 408 to prove liability for or invalidity of the claim or its amount, they can be considered ‘to show the stakes' when determining whether the amount in controversy is met.”); Carroll v. Stryker Corp., 658 F.3d 675, 681 n.2 (7th Cir. 2011) (“Even though settlement offers are inadmissible to prove liability under Rule 408 of the Federal Rules of Evidence, they are admissible to show that the amount in controversy for jurisdictional purposes has been met.”); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006) (“Rule 408 says that a settlement offer is not admissible ‘to prove liability for or invalidity of the claim or its amount.' Red Roof Inns did not use the offers to show either its own liability or the ‘invalidity' of Rising-Moore's claim. Instead it used them to show the stakes, a question independent of the claim's merit. ...


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