Estrada v. Marriott International Inc.

          Present: The Honorable ANDRE BIROTTE JR., United States District Judge

          CIVIL MINUTES - GENERAL

         Proceedings: [In Chambers] ORDER DENYING MOTION FOR REMAND

         Before 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

         I. BACKGROUND

         On 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.

         Plaintiff 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 removable.

         Having considered the law and the evidence, the Court overrules Plaintiff's timeliness and waiver objections and denies the motion for remand.

         II. LEGAL STANDARD

         A case 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).

         The 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).

         If no 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).

         III. DISCUSSION

         A. Neither Pre-Suit Papers Nor Oral Communications Made After Suit Was Commenced Triggers The Second 30-Day Window To Remove.

         The 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 ...