Citations
- 884 F. Supp. 2d 1186
Full opinion text
AMENDED MEMORANDUM OPINION
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Plaintiffs Motion to Remand for Lack of Subject Matter Jurisdiction and Defects in Removal Procedure, filed May 17, 2012 (Doc. 7)(“Motion to Remand”). The Court held a hearing on June 26, 2012. The primary issues are: (i) whether Defendant FXI, Inc. adequately established that the Court has subject-matter jurisdiction over this case; and (ii) whether FXI, Inc. timely filed its Notice of Removal, filed April 17, 2012 (Doc. 1). The Court finds that FXI, Inc. has established, by a preponderance of the evidence, that the amount in controversy exceeds $75,000.00 and that the Court has subject-matter jurisdiction. The Court will, however, remand the case to the Second Judicial District Court, County of Bernalillo, State of New Mexico, because the Notice of Removal was untimely and filed outside of the thirty-day window that Congress established for removal in 28 U.S.C. § 1446(b). Accordingly, the Court will grant the Motion to Remand.
PROCEDURAL BACKGROUND
On December 22, 2011, Plaintiff Nicholas Aranda filed his Complaint to Recover Damages for Personal Injuries in the Second Judicial District Court, County of Bernalillo, State of New Mexico. See Doc. 1 at 6-11 (“Complaint”). Aranda resides in Albuquerque, New Mexico. See Complaint ¶ 1, at 6. He asserts that Foamex International is a Delaware corporation doing business in New Mexico. See Complaint ¶2, at 6. Aranda alleges that, on February 24, 2010, he slipped on hydraulic fluid, which had leaked from a forklift that had been improperly repaired, and that the incident caused him to suffer a: (i) torn anterior cruciate ligament; (ii) a lateral meniscus tear; (iii) a grade 4 femoral condral lesion to his right knee; and (iv) a severe contusion to his left knee. See Complaint ¶ 23, at 8. He required surgery on his right knee and medical treatment for both knees. See Complaint ¶ 24, at 8. Aranda asserts that he continues to suffer decreased mobility, permanent pain in his right knee, and a limp when he walks. See Complaint ¶ 25, at 8. Aranda asserts three counts against Foamex International: (i) negligence based on Foamex International creating “a dangerous condition by failing to adequately maintain and service its forklifts and failing to allow adequate maintenance and servicing of obvious safety issues”; (ii) premises liability based on Foamex International’s alleged failure to use ordinary care to keep the premises safe for Aranda’s use; and (iii) failure to provide adequate safety measures and plans based on Foamex International’s duty to provide Aranda with a safe place to work. Complaint ¶¶ 10, 37, 41, at 9-10. As relief, Aranda requests actual and punitive damages. See Complaint at 11.
On April 17, 2012, FXI, Inc., which the Complaint improperly named as Foamex International, filed its Notice of Removal. See Doc. 1. FXI, Inc. asserts that Aranda is a New Mexico citizen. See Notice of Removal ¶ 2, at 1. It further asserts that it is a Delaware corporation with its principal place of business in Pennsylvania, making it a citizen of Delaware and Pennsylvania. See Notice of Removal ¶ 2, at 1. It argues that “[t]he substantive allegations of Plaintiffs Complaint indicate that the matter in controversy exceeds $75,000.” Notice of Removal ¶ 3, at 2. FXI, Inc. contends that the Court has original jurisdiction, under 28 U.S.C. § 1332, because the amount in controversy exceeds $75,000.00 and because the suit is between citizens of different states. See Notice of Removal ¶ 4, at 2.
On May 17, 2012, Aranda filed his Motion to Remand. See Doc. 7. He argues that “Foamex International, doing business as FXI, Inc. (‘FXI’) failed to adequately establish the amount in controversy in its Notice of Removal as required by 28 U.S.C. Section 1446.” Motion to Remand at 1. He further asserts that FXI, Inc. filed its Notice of Remand sixty-two days after Aranda served its registered agent, “well outside the time period allowed by 28 U.S.C. § 1446(b).” Motion to Remand at 1. Aranda contends that FXI, Inc. has appointed CT Corporation to act as its agent to accept “any process, notice or demand required or permitted by law to be served upon” the corporation. Motion to Remand at 2. He asserts that, on February 15, 2012, he served CT Corporation with process, and that “[sjervice was accomplished by certified, return-receipt mail ... in compliance with Rule 1-004(E)(3) and (G)(1) of the New Mexico Rules of Civil Procedure.” Motion to Remand at 2. Aranda represents that, on February 15, 2012, CT Corporation sent a letter to his counsel and to the Second Judicial District Court stating that CT Corporation was returning service, because “Foamex International is not listed in [its] records or the records of the State of NM.” Motion to Remand at 2-3. He contends that, on March 5, 2012, after verifying that CT . Corporation is FXI, Inc.’s agent, he filed a Certificate of Service of Process (dated March 5, 2012), filed May 17, 2012 (Doc. 7-l)(“Certificate of Service”), in compliance with N.M.R.A.. 1-004(L). Motion to Remand at 3. He asserts that the Certificate of Service explains that service was accomplished on February 5, 2012, that CT Corporation incorrectly returned service to Aranda, and that he would mail service to FXI, Inc.’s local plant and its Delaware office to move the case forward. See Motion to Remand at 3. Aranda represents that, on March 26, 2012, Benjamin Thomas, FXI, Inc.’s counsel, contacted him, said that FXI, Inc. “was happy to accept service of process,” and requested that Aranda’s counsel, Josh Ewing, send an acceptance of service request. Motion to Remand at 3 (citing Letter from Josh Ewing to Benjamin Thomas at 8 (not dated), filed May 17, 2012 (Doc. 7-l)(“Ewing Letter”)). Aranda states that, when Mr. Ewing did not send acceptance of service papers, Mr. Thomas field an acceptance of service in state court stating that the date of service was March 22, 2012. See Motion to Remand at 3 (citing Acceptance of Service at 11 (dated April 5, 2012), filed May 17, 2012 (Doc. 7-D).
Aranda first asserts that FXI, Inc.’s Notice of Removal does not comply with 28 U.S.C. § 1446’s amount-in-controversy requirement. See Motion to Remand at 4. He emphasizes that there is a presumption against removal. See Motion to Remand at 4 (citing Laughlin v. Kmart Corp., 50 F.3d 871, 871 (10th Cir.1995)). He argues that FXI, Inc. must establish the amount in controversy by a preponderance of the evidence. See Motion to Remand at 4 (citing McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir.2008)). He further asserts that “[a] federal court determines the amount in controversy between parties on the facts as they exist at the time the defendant files a notice of removal.” Motion to Remand at 4 (emphasis in original)(quoting Varela v. Wal-Mart Stores, East, Inc., 86 F.Supp.2d 1109 (D.N.M. 2000) (Baldock, J.)). Aranda contends that, because the Complaint did not set forth the amount in controversy, FXI, Inc. needed to affirmatively establish that amount in its Notice of Removal. See Motion to Remand at 4. He argues that FXI, Inc.’s “conclusory allegations” that the Complaint’s substantive allegations indicate that the amount in controversy is greater than $75,000.00 are insufficient to establish the amount by a preponderance of the evidence. Motion to Remand at 5. He points out that FXI, Inc. “did not make any attempt to explain why the damages in this case met the amount in controversy.” Motion to Remand at 6 (citing Coca-Cola Bottling of Emporia v. S. Beach Beverage Co., 198 F.Supp.2d 1280 (D.Kan.2002)). Aranda asserts that, instead, “FXI appears to have engaged in some attempt to get [him] to carry its burden and provide a specific monetary damage amount.” Motion to Remand at 6 (citing Letter from Benjamin Thomas to Josh Ewing at 9 (dated April 30, 2012), filed May 17, 2012 (Doc. 7-1)(“Thomas Letter”)). He argues that a defendant may not engage in postremoval attempts to establish jurisdiction. See Motion to Remand at 6 (citing Laughlin v. Kmart Corp., 50 F.3d at 873; Coca-Cola Bottling of Emporia v. S. Beach Beverage Co., 198 F.Supp.2d at 1280; Varela v. Wal-Mart Stores, East, Inc., 86 F.Supp.2d at 1112). He contends that an opinion by the Honorable James A. Parker, Senior United States District Judge, in Hernandez v. Safeco Insurance Company of America, No. Civ. 11-0245, Memorandum Opinion and Order, filed September 8, 2011 (Doc. 33)(Parker, S.J.)(“Hemandez MOO”), is “directly on point.” Motion to Remand at 6. Aranda asserts that, in the Hernandez MOO, Judge Parker held that the “Tenth Circuit Court of Appeals has consistently held that a court cannot consider post-removal documents in determining the amount in controversy.” Motion to Remand at 7. He notes that Judge Parker held:
Vague and general allegations are simply insufficient for the Court to estimate, without resorting to speculation, what Plaintiffs claimed damages amount to and whether those damages exceed $75,000. Because the FIRST AMENDED COMPLAINT does not suffice to show that the amount in controversy is met, the Defendant should have provided specific facts in the NOTICE OF REMOVAL to demonstrate that Plaintiffs damages exceed $75,000.
Motion to Remand at 8 (citing Hernandez MOO at 9-10). He argues that FXI, Inc. did not, in the Notice of Removal, offer any facts to carry its burden and did not refer to any numerical value. See Motion to Remand at 9.
Aranda next asserts that FXI, Inc. did not file its Notice of Removal within thirty days of service of process. See Motion to Remand at 9. He argues that 28 U.S.C. § 1446 requires that a notice of removal must be “filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Motion to Remand at 10. He contends that FXI, Inc. received proper service under New Mexico law and that the Court is bound to follow state law when determining proper service. See Motion to Remand at 10 (citing Hardy v. Square D. Co., 199 F.Supp.2d 676 (N.D.Ohio 2002)). Aranda asserts that, in accordance with N.M.R.A. 1-004, he served FXI, Inc.’s agent on February 12, 2012, by return-receipt, certified mail and that such service was proper. See Motion to Remand at 10. He argues that FXI, Inc.’s attempt to remove the case more than thirty days after its agent was served renders the removal untimely. See Motion to Remand at 11. He contends that service of process triggers 28 U.S.C. § 1446’s thirty-day time period. See Motion to Remand at 12. He asserts that service on CT Corporation, on February 12, 2012, triggered the removal clock. See Motion to Remand at 12. Aranda argues that numerous courts have found service on CT Corporation or other designated agents to be sufficient to trigger the thirty-day time period. See Motion to Remand at 12. He contends that courts have distinguished between statutory agents and designated agents, with the latter triggering the § 1446 time period. See Motion to Remand at 13. He asserts that FXI, Inc. designated CT Corporation as its agent, that he served CT Corporation, and that service occurred on February 15, 2012. See Motion to Remand at 18.
On May 31, 2012, FXI, Inc. filed the Defendant’s Response to Plaintiffs Motion to Remand for Lack of Subject Matter Jurisdiction and Defects in Removal Procedure. See Doc. 15 (“Response”). FXI, Inc. asserts that Aranda sued Foamex International and that there is no Foamex International in New Mexico. See Response at 1. It represents that Foamex Products, Inc. was, at one time, registered to do business in New Mexico, but that Foamex Products, Inc. no longer exits. See Response at 1. It states that, in February 2012, it received the service of process from its registered agent, which is not a registered agent for Foamex International. See Response at 1. FXI, Inc. argues that CT Corporation informed Aranda that Foamex International was not listed in its records or the State’s records, thus putting him on notice that his service was deficient.' See Response at 2. It asserts that Aranda never sought to name, or investigate, the proper party. See Motion to Remand at 2. FXI, Inc. represents that, on March 22, 2012, Mr. Thomas contacted Mr. Ewing to inform Mr. Ewing that he had named the wrong defendant and that FXI, Inc. would agree to accept service, as of the date Mr. Thomas received the Complaint, if Mr. Ewing would amend the Complaint to name the proper party. See Response at 2. It' notes that Aranda has not amended his Complaint to name FXI, Inc. as the proper Defendant. See Response at 2. It asserts that it explained these circumstances to Mr. Ewing and that it would consent to remand if Aranda would agree that the amount in controversy does not exceed $75,000.00. See Response at 2.
FXI, Inc. argues that removal was proper, because the facts make it possible that the amount in controversy is over $75,000.00. See Response at 3. It asserts that the “Motion for Remand is entirely silent, and suspiciously so, as to whether the amount in controversy in this matter is the federal jurisdiction threshold of $75,000.” Response at 3. It contends that Aranda has misconstrued the burden on FXI, Inc. and that he cannot “hide behind the vague assertions of his Complaint to avoid federal jurisdiction.” Response 3. FXI, Inc. argues that it need only establish that it is possible that the amount in controversy exceeds $75,000.00 to maintain jurisdiction in federal court. See Response at 3. It asserts that the United States Court of Appeals for the Tenth Circuit has held that a defendant “must affirmatively establish jurisdiction by proving jurisdictional facts that made it possible that $75,000 was in play.” Response at 3 (emphasis in original)(citing McPhail v. Deere & Co., 529 F.3d at 955). It argues that, once the defendant proves that the amount in controversy may exceed $75,000.00, the Tenth Circuit “justified shifting the burden onto the plaintiff.” Response at 4 (emphasis in original)(citing McPhail v. Deere & Co., 529 F.3d at 955). FXI, Inc. contends that the Notice of Removal references the Complaint’s factual allegations, which “more than establish that the amount in controversy quite possibly exceeds $75,000.” Response at 4. It asserts that the “Plaintiff has ignored his burden in showing that $75,000 is not a possible amount in controversy and has refused to take a position as to the amount in controversy, thereby playing fast and loose with this Court.” Response at 5. It argues that, when a Complaint fails to make an explicit demand, a defendant may rely on an estimate of potential damages. See Response at 5. It contends that Aranda cannot avoid removal “by ‘declining to allege the jurisdictional amount.’ ” Response at 5 (citing McPhail v. Deere & Co., 529 F.3d at 955). FXI, Inc. further asserts that meeting the amount-in-controversy requirement is “easier said than done when the plaintiff, the master of the complaint, does not want to be in federal court and provides little information about the value of [his] claims.” Response at 6 (citing Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir.2006)). It argues that “[i]t is clear that the extent and volume of categories of damages alleged by Plaintiff possibly could exceed $75,000 if proven.” Response at 7.
FXI, Inc. contends that it may rely on evidence submitted after removal to establish the jurisdictional threshold. See Response at 8. It asserts that, if a defendant removes in good faith, a defendant can bolster that claim with other evidence “beyond the complaint itself ... obtained in state court before removal was filed [or] ... submitted in federal court afterward.” Response at 8 (emphasis in original)(citmg McPhail v. Deere & Co., 529 F.3d at 956). It argues that, the Tenth Circuit’s opinion in Laughlin v. Kmart Corp. does not preclude a defendant from putting forth additional evidence after removal. See Response at 8-9 (citing Laughlin v. Kmart Corp., 50 F.3d at 873). It contends that, in Laughlin v. Kmart Corp. and in the Hernandez MOO, the defendant made “no good-faith estimate of the damages alleged.” Response at 9. FXI, Inc. asserts that, in the Hernandez MOO, a post-removal economic analysis would not suffice, because, like in Laughlin v. Kmart Corp., both the complaint and the notice of removal “failed to suggest any potential value of the claims.” Response at 9 (citing Hernandez MOO at 7). It further asserts that Aranda’s refusal to stipulate that the amount in controversy is less than $75,000.00 is “telling” as to the actual amount in controversy. Response at 10. It argues that Aranda’s reliance on Varela v. Wal-Mart Stores, East, Inc., is misplaced, because he conflates “facts as they exist at the time ... of removal,” with proof offered after removal to establish those same facts. Response at 10. It contends that McPhail v. Deere & Co. abrogated the standard that the Tenth Circuit applied in Varela v. Wal-Mart Stores, East, Inc. See • Response at 10. FXI, Inc. argues that considering a plaintiffs failure to stipulate is “essential in preserving the purpose for diversity jurisdiction-because it thwarts a plaintiffs ability to game the forums.” Response at 11. It asserts that Aranda cannot have it both ways — arguing that the jurisdictional amount is not met while refusing to stipulate that he seeks less than $75,000.00. See Response at 11-12.
FXI, Inc. contends that Aranda’s alleged medical injuries alone are enough that, if proven, they would likely exceed $75,000.00. See Response at 12. It argues that a range of cases with “similar ligamentary injuries have led to damage awards over $75,000.00 on these bases alone.” Response at 12 (citing Mazyck v. Long Island R.R., 896 F.Supp. 1330 (E.D.N.Y.1995); Calzado v. N.Y. Transit Auth., 304 A.D.2d 385, 758 N.Y.S.2d 303 (Ct.App.2003)). It emphasizes that Aranda also seeks past and future medical expenses, and punitive damages. See Response at 12-13. Alternatively, FXI, Inc. seeks further discovery to establish the jurisdictional threshold. See Response at 13. FXI, Inc. asserts that limited discovery would allow it to ascertain Aranda’s past medical expenses and to make a reasonable assessment of Aranda’s alleged damages. See Response at 13.
FXI, Inc. next argues that its removal was timely, because of Aranda’s failure to name and serve the proper defendant. See Response at 14. It asserts that “[f¡ormal service — not notice — is required to trigger the thirty-day period for removal.” Response at 14 (citing Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 347, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)). It contends that failure to properly name a defendant in the complaint and summons is defective process. See Response at 15. It argues that, in the context of rule 15(c) of the Federal Rules of Civil Procedure, the Supreme Court of the United States rejected a commonality-of-interest approach, where it was argued that the intended defendant was “misdesignated in form only, and knew or reasonably should have known that it was the true target.” Response at 15 (citing Schiavone v. Fortune aka Time, Inc., 477 U.S. 21, 26, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986)). FXI, Inc. argues that the same is true here, and that a summons, in New Mexico, must contain “an appropriate indication of the other parties, and the name of each party to whom the summons is directed.” Response at 15 (emphasis in original)(citing N.M.R.A. 1-004(B)(1)). It contends that it “is irrelevant whether the party knows it is the real party in interest and therefore knows the case might be removable; the thirty-day time period beg[ins] when it [is] brought under the court’s authority, not when it ascertain[s] it might be removable.” Response at 15 (citing Fenwick v. Nationwide Mut. Ins. Co., No. 2:09-CV-572, 2009 WL 3246757, at *3 (D.Utah Oct. 6, 2009)). It asserts that a non-existent entity was named and a different entity served, and that such circumstances do not constitute proper service. See Response at 15-16. It points out that FXI, Inc. and Foamex International are separate entities, that Mr. Thomas informed Mr. Ewing of the error, and that Mr. Ewing failed to send an acceptance of service form to it. See Response at 16. FXI, Inc. argues that it was not obligated to engage in this action until counsel agreed to accept service on its behalf and that the time to remove did not begin to run until that date. See Response at 16 (citing Fenwick v. Nationwide Mut. Ins. Co., 2009 WL 3246757, at *3). It asserts that Foamex International has never done business as FXI, Inc. and, although FXI, Inc. bought Foamex International’s assets and may be responsible under a theory of successor liability, FXI, Inc. remains a separate entity. See Response at 16 (citing Affidavit of Andrew R. Prusky (dated May 30, 2012), filed May 31, 2012 (Doc. 15-l)(“Prusky Aff.”)). It notes that the Complaint named only “Foamex International d/b/a FXI, Inc.” and that the body of the Complaint never mentioned FXI, Inc. Response at 17.
On June 18, 2012, Aranda filed his Reply in Support of Plaintiffs Motion to Remand for Lack of Subject Matter Jurisdiction and Defects in Removal Procedure. See Doc. 18 (“Reply”). Aranda reiterates that it served FXI, Inc.’s registered agent in accordance with N.M.R.A. 1-004. See Reply at 1-2. He argues that it “has become clear that CT Corporation, FXI’s registered [agent], forwarded the summons and complaint to FXI.” Reply at 2. He contends that FXI, Inc.’s “claims that it was not properly named in the complaint” are “interesting ... for [a] corporation whose name appears in the caption of the lawsuit; whose registered agent was served; whose registered .agent forwarded the complaint and summons; and whose senior Vice President admits that FXI purchased the Foamex assets in June 2009.” Reply at 2-3. He asserts that the Complaint identifies the plant where his injuries occurred — 7501 Meridian NW, Albuquerque, New Mexico 87121 — and that FXI, Ine.’s website lists the same address for its Albuquerque plant. See Reply at 3. Aranda argues that Schiavone v. Fortune aka Time, Inc., supports his position, because amended complaints against “Fortune also known as Time, Inc.” adequately named the defendant. Reply at 4.
Aranda also asserts that FXI, Inc. did not establish the amount in controversy and that it is not entitled to post-removal discovery. See Reply at 6. He argues that his Complaint complies with New Mexico law, which does not allow him to provide a numerical estimate of his damages. See Reply at 7. He emphasizes that his “silent” Complaint is not a “tactic” to avoid federal jurisdiction, but is rather an attempt to comply with New Mexico law. Reply at 7. He contends that the Notice of Removal, coupled with the Complaint, does not establish whether the amount in controversy exceeds $75,000.00. See Reply at 7. Aranda asserts that FXI, Inc. made no attempt to explain its position regarding the amount in controversy in its Notice of Removal, and points out that all of the cases on which FXI, Inc. relies to establish that his injuries exceed $75,000.00 involved a wrongful death action or an extended hospital stay. See Reply at 8. He reiterates that it is FXI, Inc.’s burden to establish that the amount in controversy exceeds the jurisdictional requirement. See Reply at 8-9. He argues that the “post-removal analysis in FXI’s Response simply comes too late” and that language in McPhail v. Deere & Co. suggesting that post-removal justifications are permissible is dicta. Reply at 9 (citing Hernandez MOO at 5). Aranda concedes that his Complaint alleges his injuries in more detail than the complaint which Judge Parker discussed in the Hernandez MOO, but asserts that “it is simply not accurate to label FXI’s single-sentence analysis as a good faith attempt” to establish the jurisdictional amount. Reply at 10. He contends that post-removal discovery would absolve defendants of their burden to establish the amount in controversy. See Reply at 10. He argues that a defendant should obtain jurisdictional discovery only where it demonstrates the need for discovery in the notice of removal. See Reply at 10. Aranda asserts that, if the Court allows discovery where the Notice of Removal contains such bare assertions, then the defense’s burden amounts to “no burden at all.” Reply at 11 (citing Russell v. Shelter Ins. Co., No. 11-0816, 2011 WL 5877464, at *2 (W.D.Okla. Nov. 23, 2011)).
The Court held a hearing on June 26, 2012. Aranda gave some background on the case and the circumstances leading to his slip and fall. See Transcript of Hearing at 5:19-25 (June 26, 2012)(Ew-ing)(“Tr.”). With respect to the amount in controversy, he argued that FXI, Inc. has not met its burden to establish that amount by a preponderance of the evidence, and asserted that the Hernandez MOO is the case most similar to the one before the Court. See Tr. at 6:16-7:2 (Ewing). He contended that FXI, Inc. has alleged only that it appears the amount in controversy exceeds $75,000.00 and asserted that there is nothing on the face of the Complaint which would allow the Court to determine that FXI, Inc. has met the amount-in-controversy requirement. See Tr. at 7:3-18 (Ewing). Aranda further asserted that FXI, Inc. did not include any explanation or specific allegations concerning the amount in controversy in the Notice of Removal. See Tr. at 7:19-8:1 (Ewing). The Court then asked whether a defendant has to prove facts or point to disputed facts which would suggest that the amount in controversy exceeds $75,000.00. See Tr. at 8:2-16 (Court). Aranda responded that the cases refer to contested facts, but asserted that he disagreed that a defendant could simply adopt the plaintiffs facts to get the defendant to the amount in controversy. See Tr. at 8:17-21 (Ewing). The Court asked what more Aranda would like to see in the Notice of Removal, because the Complaint does not seek an amount and merely lists injuries. See Tr. at 9:4-11 (Court). He argued that FXI, Inc. could attach affidavits and analogized the burden to a defendant’s burden at summary judgment. See Tr. at 9:12-10:2 (Ewing). He asserted that nothing prevented FXI, Inc. from making the arguments it made in the Response in its Notice of Removal. See Tr. at 10:9-23 (Ewing). Aranda contended that post-removal evidence should not be relevant to the Court’s decision regarding the Motion to Remand and that the Thomas Letter, seeking a stipulation that the damages were less than $75,000.00, came after the Notice of Removal was filed. See Tr. at 11:18-12:12 (Court, Ewing). The Court asked how he squared that argument with language from the Tenth Circuit permitting post-removal jurisdictional discovery. See Tr. at 12:13-18 (Court). Aranda responded that he had not located a case that answered the Court’s question, but that, if FXI, Inc. required jurisdictional discovery, it should have requested that discovery in its Notice of Removal. See Tr. at 13:2-12 (Ewing).
FXI, Inc. pointed to Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir.1999), on which the Tenth Circuit relied in McPhail v. Deere & Co., where the United States Court of Appeals for the Fifth Circuit looked at the face of the complaint and the injuries alleged, and stated that the face of the complaint was sufficient to place $75,000.00 in play. See Tr. at 14:2-22 (Court). It argued that the Fifth Circuit’s analysis in Luckett v. Delta Airlines, Inc. is consistent with the Tenth Circuit’s jurisprudence and that the Tenth Circuit reached similar conclusions in McPhail v. Deere & Co. See Tr. at 15:23-16:9 (Court, Thomas). It contended that, in McPhail v. Deere & Co., the Tenth Circuit permitted post-removal evidence to establish the amount in controversy and that Judge Parker’s opinion in the Hernandez MOO is distinguishable from this case. See Tr. at 16:12-17:2 (Court, Thomas). FXI, Inc. asserted that, in the Hernandez MOO, the complaint’s factual allegations were so vague as to the damages sought that the Notice of Removal could give no indication that $75,000.00 was in controversy. See Tr. at 17:2-16 (Thomas). It also argued that, in the Hernandez MOO, Judge Parker relied on Martin v. Franklin Capital Corp., 251 F.3d 1284 (10th Cir.2001), which the Tenth Circuit limited in McPhail v. Deere & Co. See Tr. at 17:17-21 (Thomas). It contended that it could not have calculated a dollar value for the damages Aranda alleges he suffered, because it had no idea what Aranda’s medical costs were or how long he was out of work. See Tr. at 19:1-5 (Thomas). FXI, Inc. argued that the Tenth Circuit recognized the difficulty of placing a numerical value on damages when the plaintiff fails to do so in a complaint and that, in McPhail v. Deere & Co., the Tenth Circuit held that a defendant need only demonstrate that $75,000.00 could be in play. See Tr. at 19:6-21 (Thomas). FXI, Inc. also emphasized that Aranda alleges very specific and very serious knee injuries. See Tr. at 20:1-11 (Thomas). It asserted that, in its Response, it provided a survey of cases where similar knee injuries resulted in verdicts above the jurisdictional amount. See Tr. at 20:20-21:8 (Thomas).
FXI, Inc. argued that four categories of evidence supported a finding that the Court has jurisdiction: (i) the allegations in the Complaint; (ii) post-removal evidence; (iii) the specific injuries alleged in the Complaint; and (iv) Aranda’s failure to stipulate that his damages are worth less than $75,000.00. See Tr. at 22:5-13 (Thomas). It asserted that the failure to stipulate is against what McPhail v. Deere & Co. is trying to protect, because it is unfair for a party to argue that it should not be in federal court, but refuse to stipulate that his or her damages are less than $75,000.00. See Tr. at 22:14-23:1 (Thomas). It contended that, in Salazar v. GEICO Ins. Co., No. 10-0118, 2010 WL 2292930 (D.N.M. Apr. 27, 2010)(Browning, J.), the Court gave the plaintiffs repeated opportunities to stipulate that they were not seeking more than $75,000.00 in damages and that, when the plaintiffs refused to so stipulate, the Court found that the amount-in-controversy requirement had been met. See Tr. at 24:12-23 (Thomas).
With respect to the service issue, the Court stated that the issue appears to boil down to whether a caption and summons which states that Foamex International was doing business as FXI, Inc. and which was served on FXI, Inc.’s agent, constitutes proper service of FXI, Inc. See Tr. at 26:1-17 (Court). Aranda asserted that, if the Court goes to the New Mexico Public Regulation Commission’s website entry for FXI, Inc., it lists the building where he worked and states that the operating company is Foamex Innovations. See Tr. at 26:21-27:19 (Court, Ewing). He argued that it would appear, to any individual looking at this entry, that the Foamex company and FXI, Inc. are one and the same, and that FXI, Inc. was properly served. See Tr. at 27:20-22 (Ewing). He contended that FXI Inc.’s website lists the same address as he listed in the Complaint, demonstrating that FXI, Inc. is taking responsibility for the plant where he was injured. See Tr. at 27:23-28:4 (Ewing). Aranda argued that CT Corporation must have forwarded the Complaint and summons to FXI, Inc., because FXI, Inc. represents that it received those materials in February 2012. See Tr. at 28:20-29:4 (Court, Ewing). He asserted that the Supreme Court, in Schiavone v. Fortune aka Time, Inc., discusses caption requirements and indicated that naming Fortune also known as Time, Inc. was sufficient. See Tr. at 29:7-16 (Ewing).
FXI, Inc. asserted that the reference to Foamex Innovations Holding Company, on the New Mexico Public Regulation Commission’s website, was not significant, because that party was not sued and simply has a name similar to a non-existent party. See Tr. at 29:23-30:8 (Thomas). The Court asked how FXI, Inc. learned about this case. See Tr. at 30:9-11 (Court). FXI, Inc. responded that it received the Complaint sometime in late February or March 2012. See Tr. at 30:12-25 (Thomas). The Court stated that it sounded like Aranda’s version is probably correct: CT Corporation sent the documents back to Aranda, but also made a copy and sent it to FXI, Inc. as a heads up. See Tr. at 31:1-6 (Court). FXI, Inc. stated that it had no evidence to the contrary and that the Court’s assumption sounded like a valid one. See Tr. at 31:7-9 (Thomas). FXI, Inc. argued, however, that, under Murphy Bros. v. Michetti Pipe Stringing, Aranda’s efforts did not constitute sufficient service. See Tr. at 31:21-24 (Thomas). It asserted that service was defective, because it names a party that does not exist and never did business as FXI, Inc. See Tr. at 32:11-14 (Thomas). It contended that the summons is wrong. See Tr. at 32:14-16 (Thomas). It further asserted that this case is similar to Fenwick v. Nationwide Mut. Ins. Co. where the plaintiff sued the tradename companies, instead of suing the parent company, but sent a courtesy copy to the parent company. See Tr. at 33:2-11 (Thomas). FXI, Inc. argued that there the plaintiff amended its complaint to name the correct party, and the district court held that the courtesy copy did not trigger the thirty-day removal deadline, because formal service of process on the correct party is required. See Tr. at 33:14-34:7 (Thomas). It contended that, here, Aranda sued Foamex International, but tried to serve FXI, Inc. See Tr. at 34:8-13 (Thomas). On the other hand, it conceded that FXI, Inc. bought Foamex International’s assets and liabilities, but asserted that Foamex International is no longer in business. See Tr. at 34:17-21 (Thomas). FXI, Inc. emphasized that, when it received a copy of the Complaint, it called Mr. Ewing and explained that he had sued the wrong party, but Mr. Ewing did nothing to correct his filings. See Tr. at 34:22-35:22 (Thomas). It also noted that the Schiavone v. Fortune aka Time, Inc. case was a relation-back case and did not discuss what triggers the removal deadline. See Tr. at 36:20-37:2 (Thomas).
RELEVANT LAW REGARDING REMOVAL
If a civil action filed in state court satisfies the requirements for original federal jurisdiction, the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court “embracing the place where such action is pending.” 28 U.S.C. § 1441(a). See Huffman v. Saul Holdings Ltd. P’ship., 194 F.3d 1072, 1076 (10th Cir.1999)(“When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court .... ” (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996))). “It is well-established that statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 404 F.3d 1232, 1235 (10th Cir.2005)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); United States ex rel. King v. Hillcrest Health Ctr., 264 F.3d 1271, 1280 (10th Cir.2001)). “All doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 688 F.2d 331, 333 (10th Cir.1982). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.2002).
1. The Presumption Against Removal.
There is a presumption against removal jurisdiction. See Laughlin v. Kmart Corp., 50 F.3d at 873. “Removal statutes are to be strictly construed, and all doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333. The removing party bears the burden of establishing the requirements for federal jurisdiction. See Martin v. Franklin Capital Corp., 251 F.3d at 1290; Bonadeo v. Lujan, No. 08-0812, 2009 WL 1324119, at *4 (D.N.M. Apr. 30, 2009)(Browning, J.)(“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”).
The removing defendant bears the burden of establishing that removal is proper. See McPhail v. Deere & Co., 529 F.3d at 953 (“[According to this and most other courts, the defendant is required to prove jurisdictional facts by a ‘preponderance of the evidence’ ”); Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“As the removing party, the defendant bears the burden of proving ‘all jurisdictional facts and of establishing a right to removal.’ ” (quoting Chavez v. Kincaid, 15 F.Supp.2d at 1119)). The Tenth Circuit has explained that, “[g]iven the limited scope of federal jurisdiction, there is a presumption against removal, and courts must deny such jurisdiction if not affirmatively apparent on the record.” Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778 (10th Cir.2005)(unpublished).
1. Procedural Requirements for Removal.
Section 1446 of Title 28 of the United States Code governs the procedure for removal. Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed. See Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). “The failure to comply with these express statutory requirements for removal can fairly be said to render the removal ‘defective’ and justify a remand.” Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir.1999) (quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir.1999)). See Bonadeo v. Lujan, 2009 WL 1324119, at *4; Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M. 1998) (Campos, J.)(“The right to remove a case that was originally in state court to federal court is purely statutory, not constitutional.”).
Pursuant to 28 U.S.C. § 1446(a),
[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 signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
28 U.S.C. § 1446(a). 28 U.S.C. § 1446(a) has been interpreted as requiring all defendants to join in a removal petition. See Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)(citing 28 U.S.C. § 1446(a); Chi, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th Cir.1998); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981)(“A co-defendant ... did not join in the petition for removal and the petition was thus procedurally defective.”); 16 J. Moore, Moore’s Federal Practice § 107.11[l][c], at 107-36-37 (3d ed. 2006)(“Because the right of removal is jointly held by all the defendants, the failure of one defendant to join in the notice precludes removal. This rule requires that there be some timely written indication from each served defendant ... that the defendant has actually consented to removal.”).
Section 1446 specifies the timing requirements for removal. See 28 U.S.C. § 1446(b). “In a case not originally removable, a defendant who receives a pleading or other paper indicating the postcommencement satisfaction of federal jurisdictional requirements — for example, by reason of the dismissal of a nondiverse party — may remove the case to federal court within 30 days of receiving such information.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). “Under § 1446(b), the removal period does not begin until the defendant is able ‘to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts.’ ” Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d at 1077 (quoting DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir.1979)). The Tenth Circuit has further elaborated that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice from the [initial] pleading itself.” Akin v. Ashland Chem. Co., 156 F.3d at 1036. The Tenth Circuit specifically disagreed with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036 (emphasis in original). Thus, when “an initial pleading” is “ambiguous in that it did not provide unequivocal notice of the right to remove,” this thirty-day period does not begin to run in the Tenth Circuit until the defendant receives unequivocal notice of the right to remove. Akin v. Ashland Chem. Co., 156 F.3d at 1035.
“No case, however, may be removed from state to federal court based on diversity of citizenship ‘more than 1 year after commencement of the action.’ ” Caterpillar Inc. v. Lewis, 519 U.S. at 69, 117 S.Ct. 467 (quoting 28 U.S.C. § 1446(b)). Section 1446(b) provides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1). The requirement that a defendant timely file the notice of removal is mandatory, although timeliness is not jurisdictional. See United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir.l975)(“[T]he statute, insofar as the time for removal is concerned, is imperative and mandatory, must be strictly complied with, and is to be narrowly construed.”); Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D.Kan.1992)).
3. Waiver of Right to Remove.
The right to remove may be waived. See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d at 1077 (noting that a defendant who does not act within the statutory removal deadlines waives its right to remove the action to federal court). Cf. Akin v. Ashland Chem. Co., 156 F.3d at 1036 & n. 7 (ruling, in response to assertion made in motion to remand that one of the defendants had waived its right to removal by moving for summary judgment in state court, “that a defendant who actively invokes the jurisdiction of the state court and interposes a defense in that forum is not barred from the right to removal in the absence of adequate notice of the right to remove,” and applying the principle, after the plaintiff amended her complaint in federal court, that “once [plaintiff] decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain there” (internal quotation marks omitted)).
Courts have held that, once a claim for enforcement of a federal right has been made in state tribunals, a defendant waives its right to removal by “demonstrating a ‘clear and unequivocal’ intent to remain in state court.” Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir.1991)(citing Rothner v. City of Chi., 879 F.2d 1402 (7th Cir.1989)). See Aqualon v. Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir.1998). Courts have found a clear intent to remain in state court may be shown by taking “substantial defensive action” before removal, Aqualon v. Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir.1998), or by seeking a final determination on the merits of the case before removal, see Wolfe v. Wal-Mart Corp., 133 F.Supp.2d 889, 893 (N.D.W.Va.2001)(holding that filing a motion for summary judgment in state court constituted waiver). As the United States District Court for the Western District of Virginia stated in Sayre Enter., Inc. v. Allstate Insurance Co., 448 F.Supp.2d 733 (W.D.Va.2006):
If a defendant could remove a case to federal court after a final and unfavorable determination had been made on the merits of the case in state court, he would be able to litigate the same case twice. This situation is precisely what must be avoided in the interests of judicial economy, fairness, convenience, and comity.
448 F.Supp.2d at 735. See Haynes v. Gasoline Marketers, Inc., 184 F.R.D. 414, 416 (M.D.Ala.1999)(finding that the defendant did not waive its right to remove, because filing an answer in state court was not a manifestation of clear and unequivocal intent to litigate on the merits in state court); Chavez v. Kincaid, 15 F.Supp.2d 1118, 1125 (D.N.M.1998)(Campos, J.)(finding waiver of right to remove when defendant served discovery requests, made a motion to dismiss, and scheduled a hearing on the motion after it should have ascertained its removal right but before it filed its notice of removal).
4. Amount in Controversy Requirement and Diversity Jurisdiction.
Subject-matter jurisdiction under 28 U.S.C. § 1332(a) requires, in addition to diversity of citizenship, that “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). 28 U.S.C. § 1446 establishes the procedural requirements for removal.
In Laughlin v. Kmart Corp., the Tenth Circuit held that, where a state-court complaint does not identify a specific amount that the plaintiff seeks to recover, the burden is on a defendant seeking removal to demonstrate that this jurisdictional prerequisite is satisfied by “affirmatively establishing] on the face of either the petition or the removal notice” that the amount in controversy exceeds the statutory requirement. 50 F.3d at 873. In that case, the plaintiff alleged wrongful constructive discharge and sought damages in excess of $10,000.00. See Laughlin v. Kmart Corp., 50 F.3d at 872. The defendant attached the complaint to its notice of removal, but failed to suggest any potential value of the claims in the complaint. See Laughlin v. Kmart Corp., 50 F.3d at 873. Thus, the Tenth Circuit was presented with a complaint and a notice of removal that both referred only to damages in excess of $10,000.00, and found the reference insufficient to satisfy the amount-in-controversy requirement See Laughlin v. Kmart Corp., 50 F.3d at 874.
In Martin v. Franklin Capital Corp., 251 F.3d 1284 (10th Cir.2001), the defendant’s notice of removal totaled up all of the dollar figures in the plaintiffs complaint, but the Tenth Circuit considered some of the dollar amounts background information that were not linked to the plaintiffs attempts to recover damages. Because the Tenth Circuit found that the defendant’s notice of removal depended on an erroneous “construction of the [plaintiffs] pleading,” the Tenth Circuit held that the defendant had not satisfied the amount-in-controversy requirement. See 251 F.3d at 1291.
More recently, the Tenth Circuit has noted that “[d]eterminations of sufficiency of the amount in controversy are governed by an odd set of rules.” McPhail v. Deere & Co., 529 F.3d at 952. The Tenth Circuit, in McPhail v. Deere & Co. explained:
[I]f the in-state plaintiff wishes to remain in state court, all it needs to do is to refrain from alleging any particular sum in its prayer for relief (assuming that is permitted, as it often is, under state rules of civil procedure), and, according to this and most other courts, the defendant is required to prove jurisdictional facts by a “preponderance of the evidence” such that the amount in controversy may exceed $ 75,000. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001). Thus, when the proponent of federal jurisdiction is the party that does not need it, mere allegations suffice; but when the proponent of federal jurisdiction is the party in whose interest diversity jurisdiction was created, actual proof of jurisdictional facts is required, at a stage in the litigation when little actual evidence is yet available. This set of rules bears no evident logical relation either to the purpose of diversity jurisdiction, or to the principle that those who seek to invoke federal jurisdiction must establish its prerequisites.
McPhail v. Deere & Co., 529 F.3d at 953 (citation omitted).
“[A] plaintiff cannot avoid removal merely by declining to allege the jurisdictional amount [in controversy].” McPhail v. Deere & Co., 529 F.3d at 955. In the absence of an explicit demand for more than $75,000.00, the defendant must show how much is in controversy through other means. See McPhail v. Deere & Co., 529 F.3d at 955. The Tenth Circuit explained that “the defendant must affirmatively establish jurisdiction by proving jurisdictional facts that ma[ke] it possible that $75,000 [is] in play.” McPhail v. Deere & Co., 529 F.3d at 955. The Tenth Circuit has identified the means upon which the defendant may rely to show how much is in controversy: (i) the defendant may rely on an estimate of the potential damages from the allegations in the complaint; (ii) the defendant may rely on other documentation to provide a basis for determining the amount in controversy, such as answers to interrogatories obtained in the state court before removal, affidavits, or other evidence submitted in federal court afterward; and (iii) the defendant may rely on the plaintiffs proposed settlement amount if it appears to reflect a reasonable estimate of the plaintiffs claim, because the plaintiffs own estimation of its claim is a proper means of supporting the allegations in the notice of removal. See McPhail v. Deere & Co., 529 F.3d at 956. In McPhail v. Deere & Co., the Tenth Circuit found that the defendant met its burden to support diversity jurisdiction where the plaintiffs complaint was silent on the amount in controversy. In its notice of removal, the defendant represented that the amount in controversy exceeded $75,000.00, and incorporated electronic-mail messages and letters of conversations between the parties’ attorneys discussing the value of the claim. See McPhail v. Deere & Co., 529 F.3d at 956. The defendant’s counsel interpreted the conversations as meaning that the plaintiff was seeking more than $75,000.00, but the plaintiffs counsel refused to concede an amount in controversy in excess of $75,000.00, stating “it may very well be” that the amount in controversy would exceed $75,000.00. 529 F.3d at 957. The Tenth Circuit found that the background information provided enough supplementary information for the district court to conclude that it was not legally certain that the plaintiff would recover an amount less than $75,000.00. See McPhail v. Deere & Co., 529 F.3d at 957.
In Meridian Security Insurance Co. v. Sadowski 441 F.3d 536 (7th Cir.2006) (Easterbrook, J.), the United States Court of Appeals for the Seventh Circuit explained how a removing defendant asserting diversity jurisdiction in the face of a silent complaint might proceed:
[T]he removing defendant, as proponent of federal jurisdiction, must establish what the plaintiff stands to recover. We have suggested several ways in which this may be done — by contentions, interrogatories or admissions in state court; by calculation from the complaint’s allegations!;] by reference to the plaintiffs informal estimates or settlement demands!;] or by introducing evidence, in the form of affidavits from the defendant’s employees or experts, about how much it would cost to satisfy the plaintiffs demands. The list is not exclusive; any given proponent of federal jurisdiction may find a better way to establish what the controversy between the parties amounts to, and this demonstration may be made from either side’s viewpoint (what a judgment would be worth to the plaintiff, or what compliance with an injunction would cost the defendant). Once the estimate has been made — and contested factual allegations that support the estimate have been established in a hearing under Rule 12(b)(1) by admissible evidence ... — then ... the case stays in federal court unless it is legally certain that the controversy is worth less than the jurisdictional minimum.
441 F.3d at 541-42 (citations omitted). The Tenth Circuit in McPhail v. Deere & Co. adopted the reasoning of the Seventh Circuit, stating:
Meridian eliminates the double standard that would come from misunderstanding what “preponderance of the evidence” requires. The proponent of federal jurisdiction must prove contested facts; and because a defendant has no control over the complaint, he cannot put a large sum of money in controversy simply by demanding it, as a plaintiff often can. But once those underlying facts are proven, a defendant (like a plaintiff) is entitled to stay in federal court unless it is “legally certain” that less than $75,000 is at stake. If the amount is uncertain then there is potential controversy, which is to say that at least $75,000 is in controversy in the case.
McPhail v. Deere & Co., 529 F.3d at 954 (emphasis in original). Other Seventh Circuit cases have noted that events “subsequent to removal may clarify what the plaintiff was seeking when the case was removed,” Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir.2011), and that “[e]vents subsequent to removal that merely reveal whether the required amount was in dispute on the state of filing, rather than alter the current amount in controversy, can be considered in deciding what that original amount in controversy was,” BEM I, LLC, v. Anthropologie, Inc., 301 F.3d 548, 552 (7th Cir.2002).
ANALYSIS
The Court will grant in part and deny in part the Motion to Remand. The Court finds that FXI, Inc. has established, by a preponderance of the evidence, that the amount in controversy exceeds $75,000.00 and that the Court has subject-matter jurisdiction. The Court will, however, remand the case to the Second Judicial District Court, County of Bernalillo, State of New Mexico, because the Notice of Removal was untimely and filed outside of the thirty-day window that Congress established in 28 U.S.C. § 1446(b).
/. FXI, INC. HAS ESTABLISHED, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE AMOUNT-IN-CONTROVERSY REQUIREMENT IS MET.
Aranda argues that FXI, Inc. was required to establish the amount in controversy by a preponderance of the evidence. See Motion to Remand at 4. He further asserts that “[a] federal court determines the amount in controversy between parties on the facts as they exist at the time the defendant files a notice of removal.” Motion to Remand at 4 (emphasis in original). Aranda contends that, because the amount in controversy was not set forth in the Complaint, FXI, Inc. was required to affirmatively establish that amount in its Notice of Removal. See Motion to Remand at 4. He argues that FXI, Inc.’s “conclusory allegations” that the Complaint’s substantive allegations indicate that the amount in controversy is greater than $75,000.00 are insufficient to establish the amount by a preponderance of the evidence. Motion to Remand at 5. He points out that FXI, Inc. “did not make any attempt to explain why the damages in this case met the amount in controversy.” Motion to Remand at 6. FXI, Inc. argues that removal was proper, because the facts make it possible that the amount in controversy is over $75,000.00. See Response at 3. It asserts that the “Motion for Remand is entirely silent, and suspiciously so, as to whether the amount in controversy in this matter is the federal jurisdiction threshold of $75,000.” Response at 3. FXI, Inc. contends that it need only establish that it is possible that the amount in controversy exceeds $75,000.00 to maintain jurisdiction in federal court. See Response at 3.
The Tenth Circuit’s most recent opinion discussing how a defendant may establish the amount in controversy is McPhail v. Deere & Co. In that opinion, the Tenth Circuit held that the “preponderance of the evidence standard” applies to jurisdictional facts, not jurisdiction itself. McPhail v. Deere & Co., 529 F.3d at 954. It held that, “[bjeyond the complaint itself, other documentation can provide the basis for determining the amount in controversy — either interrogatories obtained in state court before removal was filed, or affidavits or other evidence submitted in federal court afterward.” McPhail v. Deere & Co., 529 F.3d at 956 (emphasis added). In determining that the jurisdictional amount was met, the Tenth Circuit looked to the allegations in the complaint and a series of electronic mail transmissions, included in the notice of removal, indicating that the plaintiffs counsel also believed that the amount in controversy “very well may be” above $75,000.00. McPhail v. Deere & Co., 529 F.3d at 957. The Tenth Circuit’s decision in McPhail v. Deere & Co. appears to conflict with the Tenth Circuit’s previous decisions in Laughlin v. Kmart Corp. and Martin v. Franklin Capital Corp. In Laughlin v. Kmart Corp., the Tenth Circuit held that “Kmart’s economic analysis of Laughlin’s claims for damages prepared after the motion for removal and purporting to demonstrate the jurisdictional minimum, does not establish the existence of jurisdiction at the time the motion was made.” 50 F.3d at 873. In Martin v. Franklin Capital Corp., the Tenth Circuit held that the defendant’s summary of the allegations and the requested relief “[did] not provide the requisite facts lacking in the complaint.” 251 F.3d at 1291.
Despite the language in these cases and some tension between them, however, in McPhail v. Deere & Co., the Tenth Circuit held that, “[although this Court’s opinions have not been entirely clear on [the amount-in-controversy] issue, the approach we adopt today is consistent with their holdings and analysis.” 529 F.3d at 954-55. The Tenth Circuit also clarified its holdings in those cases. Describing its holding in Martin v. Franklin Capital Corp., in which it stated that a defendant must “establish the jurisdictional amount by a preponderance of the evidence,” the Tenth Circuit said “it would have been more precise to say that the defendant must affirmatively establish jurisdiction by proving jurisdictional facts that made it possible that $75,000 was in play, which the defendants in Martin failed to do.” McPhail v. Deere & Co., 529 F.3d at 955 (emphasis in original). With respect to Laughlin v. Kmart Corp., the Tenth Circuit clarified that it was “presented with a petition and a notice of removal that both only referred to damages in excess of $10,000.” McPhail v. Deere & Co., 529 F.3d at 955. Furthermore, the notice of removal in Laughlin v. Kmart Corp., referred only to the removal statute and “thus no jurisdictional amounts are incorporated into the removal notice by reference to the statute.” Laughlin v. Kmart Corp., 50 F.3d at 873. Accordingly, even though there appears to be some tension between these decisions, because the Tenth Circuit, in McPhail v. Deere & Co., characterized its holding as consistent with its prior decisions and because McPhail v. Deere & Co. is the Tenth Circuit’s most recent, and most thorough, discussion of how to determine the amount in controversy, the Court will focus its analysis on that case.
New Mexico law provides that a “complaint shall not contain an allegation for damages in any specific monetary amount.” N.M.R.A. 1-008. The Court will therefore look to the allegations in the Notice of Removal, pursuant to 28 U.S.C. § 1446(c)(2), to determine the amount in controversy. FXI, Inc. Relies upon the following facts to establish jurisdiction. The Notice of Removal asserts that the “substantive allegations of Plaintiffs Complaint indicate that the amount in controversy exceeds $75,000.” Notice of Remo