Pursley v. Lawrence

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PAUL PURSLEY, JR. CIVIL ACTION

VERSUS No. 21-1776

SUSAN LAWRENCE ET AL. SECTION I

ORDER & REASONS

Before the Court is plaintiff Paul Pursley, Jr.’s (“Pursley”) motion1 to remand

the above-captioned matter to the Civil District Court for the Parish of Orleans.

Defendant GEICO Casualty Insurance (“GEICO”) opposes2 the motion. For the

following reasons, the motion is denied.

I. BACKGROUND

This action arises from a January 16, 2020 automobile accident involving

Pursley and Susan Lawrence (“Lawrence”).3 Pursley filed the action in the Civil

District Court for the Parish of Orleans on September 17, 2020, seeking to recover

damages for personal injuries allegedly resulting from the accident.4 Pursley is

domiciled in Louisiana.5 The original defendants were Lawrence, who is domiciled in

Louisiana; National General Insurance Company, which was incorrectly named as

Lawrence’s primary insurance company in the petition for damages and subsequently

replaced by Imperial Fire and Casualty Insurance Company (“Imperial”), the correct

1 R. Doc. No. 6.

2 R. Doc. No. 15.

3 R. Doc. No. 1, at 1; R. Doc. No. 6-1, at 4.

4 R. Doc. No. 1, at 1.

5 Id. at 3.

defendant6; and plaintiff’s uninsured/underinsured insurance carrier, GEICO

Casualty Company, which is a Nebraska corporation with its primary place of

business in Maryland.7 On August 24, 2021, plaintiff filed a motion to dismiss

defendants Lawrence and Imperial (incorrectly named as National General

Insurance Company) with prejudice in the Orleans Parish Civil District Court.8

On August 26, 2021, Hurricane Ida made landfall in Louisiana. In response,

the United States District Court for the Eastern District of Louisiana issued General

Order 21-12 on September 4, 2021. The General Order states, in relevant part:

Considering the catastrophic damage that Hurricane Ida caused in the

state, the Court finds that the federal courthouse and the office of the

Clerk of Court, were/are not meaningfully accessible within the

meaning of Federal Rule of Civil Procedure 6(a) . . . for the period of

time beginning on August 26, 2021 and continuing for thirty (30) days

thereafter.

. . . .

1. All deadlines and delays, including prescriptive and peremptive

periods, in cases pending or to be filed in this Court are hereby

suspended for thirty (30) days commencing from August 26, 2021.

6 Id. at 2; R. Doc. No. 1-2, at 6. The record does not reveal Imperial’s location of

incorporation or principal place of business. However, this information is ultimately

irrelevant to diversity jurisdiction analysis in the present action, because Imperial

was dismissed with prejudice on or before the date of Lawrence’s dismissal. See note

8 infra and accompanying text. Because plaintiff Pursley and defendant Lawrence

are both domiciled in Louisiana, complete diversity could not have arisen prior to

Lawrence’s dismissal.

7 R. Doc. No. 1, at 3; R. Doc. No. 6-1, at 5.

8 R. Doc. No. 15, at 1. GEICO states that Imperial was redundantly dismissed in the

September 21, 2021 order, because it had already been dismissed with prejudice on

May 13, 2020. R. Doc. No. 1, at 2. This date—May 13, 2020—is necessarily incorrect,

because the present action was not commenced until September 17, 2020.

Nevertheless, whether Imperial was dismissed on the same date or before Lawrence

is irrelevant, for the reasons stated supra, note 6.

As a result of the hurricane, Orleans Parish Civil District Court was closed

from August 27, 2021 through September 19, 2021.9 On September 21, 2021, the

Orleans Parish Civil District Court granted Pursley’s motion to dismiss defendants

Lawrence and Imperial with prejudice.10 It is undisputed that this dismissal created

complete diversity between the remaining parties, Pursley and GEICO, and it is also

undisputed that the amount in controversy in this case exceeds $75,000.11 Thus, there

is no dispute as to whether this Court has subject matter jurisdiction over the action,

by virtue of diversity jurisdiction pursuant to 28 U.S.C. § 1332.

The only dispute is whether GEICO timely filed the notice of removal pursuant

to 28 U.S.C. § 1446(c)(1), which states that diversity actions may not be removed to

federal court more than one year after they are commenced, unless the plaintiff has

acted in bad faith in order to prevent the defendant from removing the action. GEICO

argues that although it filed the notice of removal more than one year after this action

was commenced, General Order 21-12 suspended the one-year limitation period set

forth in § 1446(c)(1), such that GEICO’s removal was timely.12 Pursley counters that

General Order 21-12 did not suspend the one-year limitation period set forth in §

1446(c)(1), and thus that the removal was not timely.13 Accordingly, Pursley requests

the Court to remand this action to state court.

9 R. Doc. No. 15, at 2.

10 Id.

11 R. Doc. No. 1, at 2; R. Doc. No. 6-1, at 7.

12 R. Doc. No. 15, at 2–3.

13 R. Doc. No. 6-1, at 7–8; see also R. Doc. No. 20, at 2.

II. STANDARD OF LAW

Federal courts are courts of limited jurisdiction and possess only the authority

conferred upon them by the United States Constitution or by Congress. Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Federal law allows for state civil

suits to be removed to federal courts in certain instances. Generally, removal

jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:

Except as otherwise expressly provided by Act of Congress, any 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 removing party bears the burden of showing that federal

jurisdiction exists and that removal was proper.” Manguno v. Prudential Property

and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “Ambiguities are construed

against removal and in favor of remand because removal statutes are to be strictly

construed.” Poche v. Eagle, Inc., No. 15-5436, 2015 WL 7015575, at *2 (E.D. La. Nov.

10, 2015) (Barbier, J.).

To remove an action from state to federal court, a notice of removal must be

filed within 30 days of the receipt by the defendant of a copy of the initial pleading.

28 U.S.C. § 1446(b)(1). However, if the case is not originally removable, but it later

becomes removable because the defendant receives “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,” then the defendant must remove the case by

filing a notice of removal within 30 days of notice that the case has become removable.

28 U.S.C. § 1446(b)(3).

Still, there is an additional time limit on removal, where the action is based on

diversity of citizenship. If a case is based on diversity, then the case “may not be

removed . . . more than 1 year after commencement of the action,” pursuant to §

1446(b)(3), “unless the district court finds that the plaintiff has acted in bad faith in

order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c)(1); see

also Jones v. Ramos Trinidad, 380 F. Supp. 3d 516, 520 (E.D. La. 2019) (Brown, C.J.).

Under Louisiana and federal law, an action “commences” when the case is filed. New

York Life Ins. Co. v. Deshotel, 142 F.3d 873, 885 (5th Cir. 1998).

III. ANALYSIS

The parties do not dispute that the petition in the instant action was filed in

state court on September 17, 2020, and that diversity jurisdiction is proper pursuant

to 28 U.S.C. § 1332.14 However, the parties disagree as to whether the case is time-

barred from being removed to federal court, pursuant to the one-year limitation set

forth in 28 U.S.C. § 1446(c)(1), because the notice of removal was filed in this Court

on September 27, 2021.

GEICO acknowledges that it filed the notice of removal more than one year

after the action was commenced, but contends that removal is nevertheless timely

because General Order 21-12 suspended the one-year limitation contained in

14 R. Doc. No. 1, at 1, 2–3; R. Doc. No. 6-1, at 7.

§ 1446(c)(1).15 Specifically, GEICO argues that this suspension either tolled the one-

year limitation period or, in the alternative, held the one-year period in abeyance.16

GEICO contends that its notice of removal was timely under either interpretation of

the suspension effected by the General Order. First, if the General Order tolled the

limitations period for thirty days beginning on August 26, 2021, the limitations period

would have resumed accruing on September 25, 2021. This would have extended the

limitation to one year plus 30 days, for a deadline of October 17, 2021.17 Second,

GEICO contends that if the General Order had the effect of holding the one-year

limitation period in abeyance, then the filing would be due on the first day after the

General Order’s suspension period concluded. Under this theory, the General Order’s

thirty-day suspension period ran through September 25, 2021; because September

25, 2021 was a Saturday, the filing of the notice of removal on the following Monday,

September 27, 2021, was timely under Federal Rule of Civil Procedure 6(a)(1)(C),

which provides that, if the last day of a filing period falls on a Saturday, “the period

continues to run until the end of the next day that is not a Saturday, Sunday, or legal

holiday.”18

Pursley counters that General Order 21-12 does not modify the one-year

limitation contained in § 1446(c)(1), “but instead only act[s] to extend the time for

filing a removal if in this case the non-diverse defendant [had been] released from the

15 R. Doc. No. 15, at 2–3.

16 Id.

17 Id.

18 Id. at 3.

case prior to September 17, 2021 [one year after the action was commenced].”19

Because the non-diverse defendant, Lawrence, was dismissed after September 17,

2021, Pursley argues that the removal was time-barred.

The Court concludes that General Order 21-12 suspends the one-year

limitation period set forth in § 1446(c)(1). Pursley’s contention that the General Order

applied only to the thirty-day filing deadline, and not additionally to the one-year

limitation, is unavailing: after all, the General Order explicitly extends to

“prescriptive and peremptive periods.” The one-year limitation set forth in § 1446 is

a “prescriptive period.” Stuart v. Cooper Tire & Rubber Co., No. 89-4817, 1990 WL

11361, at *2 (E.D. La. Feb. 6, 1990) (Collins, J.).

This conclusion is consistent with the manner in which courts have interpreted

near-identical language in a general order issued by former Chief Judge Berrigan in

the wake of Hurricane Katrina. Mark v. Michael, No. 08-1261, 2008 WL 4365929, at

*2 (E.D. La. Sept. 23, 2008) (Shushan, M.J.) (Report & Recommendation adopted by

Engelhardt, J.). The Order, dated September 1, 2005, stated that “all deadlines and

delays, including liberative prescription and peremptive periods in cases pending or

to be filed in the Court, are hereby suspended until ordered otherwise.” Id. (emphasis

added). In construing that order, many sections of this Court concluded that it

suspended various statutory time limitations. See, e.g., id. (concluding that Chief

Judge Berrigan’s Order suspended the relevant one-year AEDPA limitations period);

19 R. Doc. No. 6-1, at 7–8; see also R. Doc. No. 20, at 2.

Higgins v. Cain, No. 07-9729, 2012 WL 3309716, at *3 (E.D. La. Aug. 13, 2012)

(Africk, J.) (concluding the same and collecting cases).

Having determined that General Order 21-12 suspended the one-year

limitation period, the Court must next determine whether this suspension tolled the

limitation period, or merely held it in abeyance. The Court concludes that the General

Order tolled the limitations period for thirty days, beginning on August 26, 2021, with

the ultimate result that the limitation period in the present action was extended to

one year plus thirty days in total, with the final day of the period on October 17, 2021.

This conclusion is consistent with prior decisions interpreting former Chief Judge

Berrigan’s 2005 Order, in which courts have concluded that “[u]nder federal law . . .

a suspension of prescription constitutes a temporary halt to its running after which

it will continue to run.” Brown v. City of New Orleans, No. 06-9125, 2007 WL 2480984,

at *4 (E.D. La. Aug. 30, 2007) (Roby, M.J.) (Report & Recommendation adopted by

Engelhardt, J.); see also, e.g., Higgins, 2012 WL 3309716, at *3 (collecting cases and

concluding that Chief Judge Berrigan’s 2005 Order tolled a one-year AEDPA

limitations period for 86 days).

In sum, the plain language of General Order 21-12 and caselaw interpreting

near-identical language set forth in former Chief Judge Berrigan’s 2005 Order

demonstrate that the General Order tolled statutory time limitations.

While the language of the General Order and prior caselaw alone provide a

sufficient basis for concluding that the one-year limitation must be extended in this

case, there is an additional basis for this conclusion. Even if the General Order had

not specifically referred to “prescriptive and peremptive periods,” Chief Judge

Brown’s finding that the Court was meaningfully inaccessible within the meaning of

Federal Rule of Civil Procedure 6(a) would, in itself, serve as a basis for extending

the one-year limitation in this case. Rule 6(a) “appl[ies] in computing any time period

specified in . . . any statute that does not specify a method of computing time.” Fed.

R. Civ. P. 6(a). Accordingly, “[the Fifth Circuit] has consistently used [Rule] 6(a)’s

method for computing federal statutory time limitations” when construing statutes

that do not provide a specific calculation method. Flanagan v. Johnson, 154 F.3d 196,

200–02 (5th Cir. 1998) (quoting Lawson v. Conyers Chrysler, Plymouth & Dodge

Trucks, Inc., 600 F.2d 465, 466 (5th Cir. 1979)); see also, e.g., id. (collecting cases);

Windland v. Quarterman, 578 F.3d 314, 317 (5th Cir. 2009) (“[The Fifth Circuit], like

every other circuit, [has] held that [Rule 6(a)] controls the calculation of the AEDPA

limitations period.”); Quave v. Progress Marine, 721 F. Supp. 784, 786 (E.D. La. 1989)

(Schwartz, J.) (“[Because there] is no provision in the Longshore and Harbor Workers’

Compensation Act . . . which provides a method by which the ten (10) day time

limitation in 33 U.S.C. § 914(f) should be calculated . . . . the provisions of Rule 6(a)

become the applicable [calculation] method.”); 4B Wright & Miller, Fed. Prac. & Proc.

Civ. § 1163 (4th ed. 2021).

Because the removal statute does not set forth a specific method of calculation

for the one-year limitation contained in § 1446(c)(1), the Court may use the method

set forth in Federal Rule of Civil Procedure 6(a). See, e.g., Davis v. Clayman, 2018 WL

1959805, at *2–3 (M.D. Fla. Apr. 26, 2018) (applying Rule 6(a)’s calculation method

to the one-year limitation set forth in § 1446(c)); Beabout v. Wolfe, 2005 U.S. Dist.

LEXIS 60750, at *7–9 (N.D. W. Va. Feb. 16, 2005) (same). Rule 6(a)(3) provides that,

in the event that the clerk’s office is inaccessible, “the time for filing is extended to

the first accessible day that is not a Saturday, Sunday, or legal holiday.” Because the

General Order contains a finding that the courthouse and the clerk’s office were “not

meaningfully accessible within the meaning of Federal Rule of Civil Procedure 6(a)

. . . for the period of time beginning on August 26, 2021 and continuing for thirty (30)

days thereafter,” the one-year limitation should be calculated to extend to September

27, 2021,20 which is the date on which GEICO filed its notice of removal.

In sum, the plain language of the General Order tolled the one-year limitation

period of § 1446(c)(1) for thirty days, effectively extending it through October 17, 2021

in this action. In the alternative, the General Order’s finding that the Court was

inaccessible for the purposes of Rule 6(a) for a period of thirty days beginning on

August 26, 2021 effectively extended the limitation period through September 27,

2021. GEICO filed its notice of removal on September 27, 2021, and thus removal was

timely under either approach. Accordingly, GEICO has met its burden of showing

that removal was proper, Manguno, 276 F.3d at 723, and because it is undisputed

that the requirements for diversity jurisdiction are met, the Court will deny Pursley’s

motion to remand this action to state court.

20 The thirty-day period of inaccessibility set forth in General Order 21-12 ran from

August 26, 2021 through September 25, 2021; because September 25, 2021 was a

Saturday, the filing of the notice of removal on Monday, September 27, 2021, was

timely under Federal Rule of Civil Procedure 6(a)(3)(A).

Finally, Pursley argues that GEICO’s notice of removal is “frivolous on its face”

and that GEICO “knowing[ly] misappl[ied]” General Order 21-12, and requests that

the Court order GEICO pay the costs and expenses incurred by plaintiff in preparing

and filings its motion to remand the action.?! For the reasons set forth above, the

Court does not find GEICO’s removal of this action, nor its arguments in favor of

removal, to be frivolous or otherwise sanctionable. The Court therefore declines to

award the requested costs and expenses.

IV. CONCLUSION

Accordingly, for the reasons stated herein,

IT IS ORDERED that the motion for remand is DENIED.

IT IS FURTHER ORDERED that Pursley’s motion for costs and expenses is

DENIED.

New Orleans, Louisiana, November 10, 2021.

UNITED STATESAISTRICT JUDGE

21 R. Doc. No. 6-1, at 8-9.

11