United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR REMAND
WALTON PRATT, JUDGE
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.
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. §
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).
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.
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.
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.
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. ...