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Kennedy v. American Multi-Cinema, Inc.

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

May 3, 2019



          TANYA WALTON PRATT, JUDGE United States District Court

         This matter is before the Court on a Motion for Remand and Request for Attorney's Fees filed pursuant to 28 U.S.C. § 1447 by Plaintiff Tammy Kennedy (“Kennedy”) (Filing No. 7). Kennedy filed a personal injury complaint against Defendant American Multi-Cinema, Inc., d/b/a AMC Entertainment, Inc. (“AMC”) on March 9, 2018, in the Marion Superior Court under Cause No. 49D10-1803-CT-009801 (Filing No. 1-2). On February 1, 2019, AMC filed a Notice of Removal and removed the lawsuit from state court to federal court based on diversity jurisdiction (Filing No. 1). Twelve days later, on February 13, 2019, Kennedy filed a Motion for Remand, arguing that AMC's removal was untimely thereby requiring that this case be returned to state court. For the following reasons, Kennedy's Motion for Remand is denied.


         “[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).

         “The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009).


         Kennedy filed the instant Complaint in state court on March 9, 2018. She “does not dispute that diversity of citizenship exists nor that the amount of controversy requirement is satisfied. Rather, [she] contends that the notice of removal was untimely.” (Filing No. 7 at 3 (emphasis in original).) Kennedy argues that the amount in controversy was ascertainable after she served AMC with her answers to AMC's First Set of Interrogatories and Request for Production on June 14, 2018, and thus, the case should have been removed within thirty days after receipt of her answers on June 14, 2018 (no later than July 14, 2018). She asserts that AMC was provided sufficient information relevant to her claim for damages that reasonably supported an amount in controversy that exceeded $75, 000.00. This information included medical bills totaling $31, 916.84, lost wages totaling at least $2, 688.00, eight weeks of missed work, evidence of permanent injury, and medical records showing that she underwent surgery (Filing No. 7 at 2, 4). Based on the medical bills, evidence of permanency, and lost wages, Kennedy asserts that there was a reasonable expectation that a jury could award a verdict in excess of $75, 000.00, so removal would have been proper at that earlier time.

         Relying on Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547 (U.S. 2014), Kennedy argues that allegations regarding the amount in controversy do not require specific evidentiary proof to invoke federal jurisdiction, and thus, AMC had enough information to remove the case to federal court when it received Kennedy's discovery responses on June 14, 2018. Therefore, Kennedy argues, AMC failed to timely remove the case to this Court when it waited until February 2019 to file its Notice of Removal.

         In response, AMC contends it could not ascertain the amount in controversy until it received Kennedy's discovery response to AMC's Second Set of Interrogatories on January 18, 2019, where Kennedy specifically averred she was seeking damages in excess of $75, 000.00 (Filing No. 24-4 at 6-7). Kennedy's response to the Second Set of Interrogatories prompted AMC to file its Notice of Removal on February 1, 2019, within thirty days after receipt of an “other paper” from which it was first ascertained that the case was removable. AMC argues that, prior to receiving Kennedy's second discovery response, it was left to speculate what amount was in controversy based on the state court Complaint and Kennedy's first discovery response. The Complaint did not specify an amount in controversy and only alleged “physical injury, incurred medical expense, loss of wages, pain and suffering, loss of enjoyment of life, and mental anguish.” (Filing No. 1-2 at 3.) Kennedy's first discovery response revealed ...

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