United States District Court, C.D. California
Present: The Honorable ANDRE BIROTTE JR., United States
CIVIL MINUTES - GENERAL
[In Chambers] ORDER DENYING MOTION FOR REMAND
the Court is Plaintiff George Estrada's ("Plaintiff)
Motion for Remand ("Motion," Dkt. No. 9).
Defendants Marriott International et al.
("Defendants") filed an opposition and Plaintiff
filed a reply. The Motion is DENIED
February 5, 2019, Plaintiff filed his initial Complaint in
state court alleging negligence and premises liability
against Defendants arising out of a slip-and-fall accident
Plaintiff suffered at Defendants' hotel. On May 1, 2019,
Plaintiff filed his First Amended Complaint
("FAC"). See Kasparian Decl. (Dkt. No. 9)
Ex. 6. On August 12, 2019, Plaintiff indicated in a statement
of damages that he was seeking $10, 000, 000 in general
damages and $1, 400, 000 in special damages. On September 11,
2019, Defendants removed based on diversity jurisdiction.
argues that Defendants removal was untimely because the FAC
showed the case was removable and Defendants removed it more
than 30 days after the FAC was filed. Plaintiff also argues
that Defendants waived their right to removal by filing a
permissive cross-complaint against a third-party in state
court despite the case being apparently removable. Defendants
respond that the case was not removable until they received
Plaintiff's statement of damages, and they timely removed
30 days thereafter. Defendants also argue that they did not
waive removal by filing a cross-complaint in state court
because it was not apparent at that time that the case was
considered the law and the evidence, the Court overrules
Plaintiff's timeliness and waiver objections and denies
the motion for remand.
filed in state court may be removed to federal court if the
federal court would have had original jurisdiction over the
case. 28 U.S.C. § 1441(a). A defendant must remove a
case within thirty days of receiving a copy of the complaint,
or if the matter is not removable based on the complaint,
within thirty days of receiving “an amended pleading,
motion, order or other paper from which it may be ascertained
that the case is one which is or has become removable.”
28 U.S.C. § 1446(b).
first thirty-day window is triggered by a defendant's
receipt of an “initial pleading” that reveals a
basis for removal. 28 U.S.C. § 1446(b)(1). This first
thirty-day period for removal only applies if the case stated
by the initial pleading is removable on its face:
removability is determined by the contents of “the four
corners of applicable pleadings, not through subjective
knowledge or a duty to make further inquiry.”
Harris v. Bankers Life & Cas. Co., 425 F.3d 689,
694 (9th Cir. 2005).
ground for removal is evident in the initial pleading, the
second thirty-day window to remove commences when the
defendant receives “an amended pleading, motion, order
or other paper” from which it can be ascertained from
the face of the document that removal is proper. 28 U.S.C.
§ 1446(b)(3); Harris, 425 F.3d at 694. Removal
based on diversity jurisdiction must commence within one year
after the case is filed. 28 U.S.C. § 1446(c)(1).
Neither Pre-Suit Papers Nor Oral Communications Made After
Suit Was Commenced Triggers The Second 30-Day Window To
Court first addresses threshold questions of what materials
may put a defendant on notice that the amount in controversy
is satisfied so the case is removable. Plaintiff contends
that pre-litigation papers it provided to Defendant (showing
damages included at least lost income, medical bills
exceeding $61, 000, and knee surgery) help establish that the
case was removable. This is incorrect. The Ninth Circuit has
squarely held that “document[s] received prior to
receipt of the initial pleading cannot trigger the second
thirty-day removal period” and rejected the notion that
“a pre-complaint document containing a jurisdictional
clue can operate in tandem with an ...