The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARGARET HOWARD CIVIL ACTION
VERSUS
NO: 23-cv-02384
WINN-DIXIE MONTGOMERY, LLC, SECTION: “A” (5)
WINN-DIXIE STORES, INC.,
and TRAJUANA IRVIN
ORDER AND REASONS
The following motion is before the Court: Motion to Remand (Rec. Doc. 6)
filed by Plaintiff, Margaret Howard. Defendants, Winn-Dixie Stores, Inc., Winn-
Dixie Montgomery, LLC, and Trajuana Irvin, oppose the motion. The motion,
submitted for consideration on August 30, 2023, is before the Court on the briefs
without oral argument.1
This suit arises out of a slip and fall that occurred at a Winn-Dixie store on
September 11, 2020 in Orleans Parish. The plaintiff, Margaret Howard, alleges that
she “slipped and fell on a slippery substance in the middle of the aisle.” (Rec. Doc. 1-
1, Petition ¶ V). Plaintiff filed suit in state court against the defendants, Winn-Dixie
Stores, Inc., Winn-Dixie Montgomery, LLC, and Trajuana Irvin. Her petition recites
the usual elements of damages associated with a slip and fall injury claim. The
1 Plaintiff has requested oral argument but the Court is not persuaded that oral
argument would be helpful in deciding the issues presented.
state court petition was filed on August 23, 2021. Since then Defendants have twice
removed the case to federal court.
The first removal occurred on July 27, 2022. Defendants removed the suit to
this Court alleging diversity jurisdiction. Relying on the “other paper” rule,2
Defendants asserted that even though it was not facially apparent from the original
petition that the amount in controversy exceeded the jurisdictional minimum,
“allegations in the Petition, information developed through discovery, and the
deposition of the plaintiff” demonstrated that the jurisdictional amount for federal
subject matter jurisdiction was satisfied. (Rec. Doc. 1, Notice of Removal, ¶ 39 (2:22-
cv-02356)). The first removal was assigned civil action number 22-2356.
Plaintiff moved to remand civil action 22-2356 to state court, arguing that
(1) the removal was untimely, (2) complete diversity was lacking, and (3)
Defendants had not met their burden to establish that the amount in controversy
requirement was satisfied. See 28 U.S.C. § 1332(a)(1) (providing original subject
matter jurisdiction where the matter in controversy exceeds the sum of $75,000
and the matter is between citizens of different states). Ultimately, the Court
2 The “other paper” rule reads as follows:
Except as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30
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).
granted the motion to remand civil action 22-2356, finding that Defendants had
not met their burden of establishing that the amount in controversy requirement
for subject matter jurisdiction was satisfied. (Rec. Doc. 11, Order and Reasons
(2:22-cv-02356)). The case then proceeded in state court.
The second removal occurred on July 7, 2023, when Defendants once again
removed the suit to this Court on the basis of diversity jurisdiction. Although 28
U.S.C. § 1446(c)(1) generally precludes removal in diversity cases more than one
year after commencement of the action, Defendants alleged that Plaintiff had
acted in bad faith in order to prevent removal. Defendants once again contended
that Trajuana Irvin was fraudulently/improperly joined in the action, thereby
allowing for diversity jurisdiction.
Plaintiff now moves once again to remand this action to state court.
Plaintiff raises two arguments: (1) that Defendants’ removal is procedurally
defective because the removal is untimely, and (2) that Louisiana defendant
Trajuana Irvin was not “fraudulently joined,” and as such, the complete diversity
necessary for diversity jurisdiction is lacking.
Section 1446 of Title 28, entitled Procedure for Removal of Civil Actions,
states in relevant part:
Requirements; removal based on diversity of citizenship—A case
may not be removed . . . on the basis of jurisdiction conferred by section
1332 [diversity jurisdiction] more than 1 year after commencement of
the action, 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) (emphasis added).
Under 28 U.S.C. § 1446(c), the defendant in a diversity case has a one-year
window following the commencement of an action to remove it to federal court.
But Congress created an exception to this limitation where “the district court
finds that the plaintiff has acted in bad faith in order to prevent a defendant
from removing the action.” Hoyt v. Lane Constr. Corp., 927 F.3d 287, 292 (5th
Cir. 2019) (citing § 1446(c)(1)). When it comes to bad faith, the question is what
motivated the plaintiff in the past—that is, whether the plaintiff's litigation
conduct meant “to prevent a defendant from removing the action.” Id. at 293.
Satisfying the requirements for § 1446(c)(1)’s bad faith exception is
considered a “high burden” because “courts are reluctant to find a party acted in
bad faith without clear and convincing proof.” Smith v. Wal-Mart Stores Texas,
LLC, No. 21-179, 2021 WL 4228902, at *4 (S.D. Tex. Apr. 9, 2021) (citing Boney
v. Lowe's Home Centers LLC, No. 19-1211, 2019 WL 5579206, at *2 (N.D. Tex.
Oct. 29, 2019)). Courts determine bad faith on a case-by-case basis, in the context
of the general rule that removal jurisdiction is to be strictly construed in favor of
remand. Id. Ultimately, the burden of showing that a plaintiff has acted in bad
faith to prevent removal lies with the removing defendant. Jones v. Ramos
Trinidad, 380 F. Supp. 3d 516, 521 (E.D. La. 2019) (Brown, C.J.).
Plaintiff commenced this action against Defendants on August 23, 2021.
Defendants filed the second Notice of Removal on July 7, 2023, which was nearly
two years after the action was commenced. The relied-upon basis for subject
matter is diversity jurisdiction. Therefore, unless Defendants can establish that
Plaintiff acted in bad faith in order to prevent removal, the motion to remand
must be granted.
The second removal was triggered by a settlement demand letter dated
June 7, 2023, the quantum of which was based in part on two new expert reports.
(Rec. Doc. 1-17, Notice of Removal Exh. Q). Dr. Eric Royster’s report is dated
May 18, 2023, and Ms. Nancy Favaloro’s report is dated May 31, 2023. Based in
large part on these two expert reports, the June 2023 settlement demand
eclipsed any prior demands or estimations of the amount in controversy that had
been made during the first year that the case was pending. As the Court
appreciates the Defendants’ position, bad faith must be at play here because Dr.
Royster and Ms. Favaloro could have issued those same opinions based on what
was known to them a year earlier. Defendants point out that Plaintiff’s special
damages only increased by $13,432 following the first remand, and that
Plaintiff’s counsel controlled the timing of the reports.
The Court is not persuaded that the circumstances of this case support a
finding of bad faith on the part of either the plaintiff or her attorney. The amount
in controversy grew significantly based on the claim for future medical care,
which tends to diminish the fact that the specials incurred following the first
remand only increased by a relatively small amount. The medical records suggest
that the plaintiff experienced an exacerbation in her symptoms in the months
after the case had been remanded for the first time.? Dr. Royster’s and Ms.
Favaloro’s reports were authored months after the one-year period for removal
had already expired, and presumably this was in accordance with the cutoff
dates that had been issued in state court. There is no indication that Plaintiff's
counsel withheld anything simply to allow the one-year removal period to expire.
Because the Court is not convinced that Defendants have met their steep
burden of establishing that the bad faith exception of § 1446(c)(1) is applicable in
this case, removal by Defendants was untimely and the motion to remand must
be granted. The remaining issue of whether Trajuana Irvin was improperly
joined is moot.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 6) filed by the
plaintiff, Margaret Howard, is GRANTED. This matter is REMANDED to the
state court from which it was removed. The request for costs and attorney’s fees
is denied.
November 21, 2023
Y AI
UNITED STATES DISTRICT JUDGE
3 Section 1446(c)(1) includes a one-year limit for removal precisely because in some
cases, in the complete absence of bad faith litigation tactics, the amount in
controversy may not be fully understood until much later in the litigation, when the
prospect of removal would be terribly disruptive to the litigation and disrespectful of
the time and resources already expended on the case by the state court judge.