Petition for Writ of Certiorari — Betty R. Shipley, Petitioner v. Helping Hands Therapy, et al.
Supreme Court briefSep 28, 2021
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No.
IN THE
Supreme Court of the United States
________________________
BETTY R. SHIPLEY,
Petitioner,
v.
HELPING HANDS THERAPY and SARAH BEAUGEZ,
Respondents.
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
PETITION FOR A WRIT OF CERTIORARI
________________________
DAVID A. O’NEIL
Counsel of Record
DEBEVOISE & PLIMPTON LLP
801 Pennsylvania Ave. N.W.
Washington, D.C. 20004
(202) 383-8000
daoneil@debevoise.com
MATTHEW SPECHT
ANAGHA SUNDARARAJAN
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
ROBERT PRINCE
G. COE BAXTER
PRINCE, GLOVER & HAYES
1 Cypress Point
701 Rice Mine Road N.
Tuscaloosa, AL 35406
(205) 345-1234
rprice@princelaw.net
i
QUESTION PRESENTED
Whether the court of appeals has jurisdiction to
review an order remanding a case to state court
based on a procedural defect, when the plaintiff files
a motion to remand within 30 days of the notice of
removal but articulates the procedural defect in a
reply more than 30 days after the notice of removal.
ii
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case on
the cover page.
iii
RELATED PROCEEDINGS
Shipley v. Helping Hands Therapy, et. al., No. 1913812 (11th Cir.) (opinion issued on May 6, 2021
finding appellate jurisdiction and vacating remand order. Mandate issued June 4, 2021).
Shipley v. Helping Hands Therapy, et. al., No. 2:18cv-00437-CG-B (S.D. Ala.) (report and recommendation by Magistrate Judge Bivins denying remand issued June 19, 2019. District court order
remanding to state court issued August 26, 2019).
iv
TABLE OF CONTENTS
Page
Question Presented ..................................................... i
Parties to the Proceedings ......................................... ii
Related Proceedings .................................................. iii
Table of Authorities....................................................vi
Opinions Below ............................................................1
Jurisdiction ..................................................................1
Statutory Provisions Involved ....................................1
Introduction .................................................................2
Statement ....................................................................4
Reasons for Granting the Writ ................................. 14
A.
The Question Presented Implicates an
Intractable, Acknowledged Circuit Split
That Only This Court Can Resolve. ................. 15
1.
2.
Two Courts of Appeals Have Held
That a District Court Exceeds its
Statutory Authority by Remanding
Based on a Procedural Defect
Identified in a Reply in Support of
Remand. ..................................................... 15
The Fifth Circuit Has Held a District
Court Does Not Exceed its Statutory
Authority by Remanding Based on a
Procedural Defect Identified in a
Reply in Support of Remand. .................... 17
B.
The Issue Is Important and Will Not Be
Resolved Without a Decision from This
Court. ................................................................. 18
C.
The Decision Below is Incorrect. ...................... 20
v
D.
This Case Is an Ideal Vehicle. .......................... 25
Conclusion ................................................................. 27
APPENDIX
Opinion of the Eleventh Circuit................................ 1a
Opinion of the District Court .................................. 10a
Report and Recommendation of the
Magistrate Judge .................................................... 34a
vi
TABLE OF AUTHORITIES
Page
CASES
Academy of Country Music v. Continental
Casualty Co., 991 F.3d 1059 (9th Cir. 2021) .... 24
Acri v. Varian Associates, Inc., 114 F.3d 999
(9th Cir. 1997) ..................................................... 5
Allen v. Christenberry, 327 F.3d 1290
(11th Cir. 2003) ................................................. 23
Arnold Crossroads, LLC v. Garnder Mountain
Co., 751 F.3d 935 (8th Cir. 2014) ....................... 3
Beaird v. Seagate Tech., Inc., 145 F.3d 1159
(10th Cir. 1998) ................................................. 25
Beardsley v. Torrey, 2 F. Cas. 1188
(D. Penn. 1822).................................................... 6
BEPCO, L.P. v. Santa Fe Minerals, Inc.,
675 F.3d 466 (5th Cir. 2012) ......................passim
Carlsbad Technologies, Inc. v. HIF Bio, Inc.,
556 U.S. 635 (2009) ....................................passim
Chicago & A.R. Railroad Co. v. Wiswall, 90
U.S. (23 Wall.) 507 (1874) ................................... 7
City of Albuquerque v. Soto Enters., 864 F.3d
1089 (10th Cir. 2017) ........................................ 18
vii
Ellenburg v. Spartan Motors Chassis, Inc., 519
F.3d 192 (4th Cir. 2008) .................................... 24
Grubbs v. General Elec. Credit Corp., 405 U.S.
699 (1972) .......................................................... 19
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ........ 5
Healy v. Ratta, 292 U.S. 263 (1934)......................... 5
In re Bethesda Mem’l Hosp., Inc., 123 F.3d
1407 (11th Cir. 1997) .................................. 13, 14
In re Continental Casualty Co., 29 F.3d 292
(7th Cir. 1994) ............................................. 24, 25
In re Pennsylvania Co., 137 U.S. 451 (1890) ........... 8
Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Manning, 136 S. Ct. 1562 (2016) ........................ 5
Moses H. Cone Memorial Hosp. v. Mercury
Constr. Corp., 460 U.S. 1 (1983) ....................... 11
New Jersey v. Babcock, 18 F. Cas. 82
(D.N.J. 1823) ....................................................... 6
Northern California District Counsel of
Laborers v. Pittsburg-Des Moines Steel Co.,
69 F.3d 1034 (9th Cir. 1995) ......................... 2, 16
Page v. City of Southfield, 45 F.3d 128 (6th
Cir. 1995) ........................................................... 24
Pierpoint v. Barnes,
94 F.3d 813 (2d Cir. 1996) ............................ 3, 18
viii
Piper Aircraft Co. v. Reyno, 454 U.S. 235
(1981) ................................................................... 5
Powerex Corp. v. Reliant Energy Serv., Inc.,
551 U.S. 224 (2007) ..................................... 19, 20
Quackenbush v. Allstate Ins. Co., 517 U.S. 706
(1996) ....................................................... 7, 11, 22
Schexnayder v. Entergy Louisiana, Inc., 394
F.3d 280 (5th Cir. 2004) .............................. 21, 23
Shamrock Oil Corp. v. Sheets, 313 U.S. 100
(1941) ....................................................... 5, 19, 23
Standard Fire Ins. Co. v. Knowles, 568 U.S.
588 (2013) ............................................................ 4
The Fair v. Kohler Die & Specialty Co., 228
U.S. 22 (1913) ...................................................... 4
Thermtron Prod., Inc. v. Hermansdorfer,
423 U.S. 336 (1976) ....................................passim
Things Remembered, Inc. v. Petrarca,
516 U.S. 124 (1995) ........................................... 19
United Mine Workers of Am. v. Gibbs,
383 U.S. 715 (1966) ............................................. 5
United States v. Rice,
327 U.S. 742 (1946) ....................................passim
Velchez v. Carnival Corp., 331 F.3d 1207
(11th Cir. 2003) ............................... 17, 20, 23, 24
ix
West v. American Tel. & Tel. Co., 311 U.S. 223
(1940) ................................................................. 26
STATUTES AND RULES
1789 Judiciary Act, First Cong. Sess. I
Ch. 20, § 12 ...................................................... 5, 6
1911 Judicial Code 36 Stat. 1094 (1911) ................. 7
1964 Civil Rights Act, Pub. L. No. 88-352 § 62,
63 Stat. 102 (1964) .............................................. 9
1964 Civil Rights Act, Pub. L. No. 88-352
§ 902, 62 Stat. 938 (1964) ................................... 9
2011 Removal Clarification Act, Pub. L. No.
112-51, 125 Stat. 545 (2011) ............................... 9
28 U.S.C. § 1447(c) ..........................................passim
28 U.S.C. § 1447(d) ..........................................passim
Amendment of Title 18 and Title 28, United
States Code Pub. L. No. 81-72 § 84,
68 Stat. 89, 101 (1949) .................................... 7, 8
Fed. R. Civ. P. 60 .................................................... 21
Fed. R. Civ. P. 12(h) ............................................... 21
x
OTHER AUTHORITIES
110 Cong. Rec. 6955 (1964) (Statement by
Representative Albert)........................................ 9
1964 Civil Rights Act, H.R. Rep. No. 88-914,
pt. 2 (1963)........................................................... 9
2011 Removal Clarification Act, H.R. Rep. No.
112-17(I) (2011) ................................................... 9
Amendment of Title 18 and Title 28, United
States Code, House Report from the
Committee on the Judiciary,
H.R. Rep. No. 352 (1949) ................................ 7, 8
Judicial Improvements and Access to Justice
Act, H.R. Rep. No. 100-889 (1988) ................ 8, 22
William M. Weicek, The Reconstruction of
Federal Judicial Power, 1863–1875, 13 Am.
J. Legal Hist. 333 (1969) ..................................... 6
1
OPINIONS BELOW
The decision of the court of appeals (Pet. App. 1a)
is reported at 996 F.3d 1157. The decision of the district court (Pet. App. 10a) is unreported but available
at 2019 WL 4014764. The magistrate judge’s report
and recommendation (Pet. App. 34a) is unreported
and is available at 2019 WL 5068691.
JURISDICTION
The decision of the court of appeals was entered
on May 6, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 1447 of Title 28 of the United States Code
states, in relevant part:
(c) A motion to remand the case on the basis of
any defect other than lack of subject matter jurisdiction must be made within 30 days after the
filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An
order remanding the case may require payment
of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.
A certified copy of the order of remand shall be
mailed by the clerk to the clerk of the State
court. The State court may thereupon proceed
with such case.
2
(d) An order remanding a case to the State court
from which it was removed is not reviewable on
appeal or otherwise, except that an order remanding a case to the State court from which it
was removed pursuant to section 1442 or 1443 of
this title shall be reviewable by appeal or otherwise.
INTRODUCTION
This case squarely presents an important issue of
statutory interpretation that, as the decision below
emphasized, has sharply divided the courts of appeals: whether a court of appeals has jurisdiction
under 28 U.S.C. § 1447(d) to review an order remanding a case based on a procedural defect when
the plaintiff properly files a motion to remand within
30 days of the notice of removal but identifies a procedural defect in a later-filed reply. See Pet. App. 2a.
Two courts of appeals, including the Eleventh
Circuit in the decision below, have concluded that a
district court exceeds its authority under 28 U.S.C.
§ 1447(c) by remanding under these circumstances
and that the court of appeals may thus review the
remand order. The decision below reasoned that because Petitioner “did not file a motion to remand
based on a procedural defect within the 30-day time
limit required by [Section 1447(c)],” she “forfeited
any procedural objection to removal.” Pet. App. 7a.
The Ninth Circuit adopted the same approach under
the same circumstances. Northern California Dist.
Council of Laborers v. Pittsburg-Des Moines Steel
Co., 69 F.3d 1034, 1038 (9th Cir. 1995) (Ҥ 1447(c)
prohibits a defect in removal procedure from being
raised later than 30 days after the filing of the notice
3
of removal, regardless of whether a timely remand
motion has been filed”).
By contrast, the Fifth Circuit has reached the
opposite conclusion under the same circumstances.
It “reject[ed] any suggestion that the timing of the
presentation of a removal defect—rather than the
submission of the remand motion—is what matters
for a timeliness analysis under Section 1447(c).”
BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d
466, 471 (5th Cir. 2012). That court concluded that
the district court did not exceed its authority to remand and therefore dismissed the plaintiff’s appeal
for lack of jurisdiction.
This conflict is current and unlikely to resolve on
its own: four courts of appeals have acknowledged
the confusion among the courts of appeals on this
question. See Pet. App. 4a–5a (“Our sister circuits
have split on this issue.”); BEPCO, L.P., 675 F.3d at
470 n.4 (“We are unpersuaded by Pittsburg-Des
Moines’s Section 1447(c) analysis, and thus refuse to
follow it.”); Pierpoint v. Barnes, 94 F.3d 813, 820 (2d
Cir. 1996); Arnold Crossroads, LLC v. Garnder
Mountain Co., 751 F.3d 935, 941 (8th Cir. 2014) (“We
therefore need not address the sometimes vexing
question of whether an appellate court has jurisdiction over a remand based on a procedural flaw not
timely raised.”).1 The three courts to have decided
the issue are unlikely to reconsider their positions
1 Though
Second and Eight Circuits have acknowledged that
the question of appellate jurisdiction has given rise to confusion
among the circuits, neither has squarely decided the question
presented. See Pierpoint v. Barnes, 94 F.3d 813, 820 (2d Cir.
1996); Arnold Crossroads, LLC v. Garnder Mountain Co., 94
F.3d 813, 941 (8th Cir. 2014).
4
because each applied its interpretation of the plain
text of the statute.
This Court should grant certiorari to resolve this
split of authority, which results in different removal
requirements under Section 1447 in New Orleans
and Atlanta. The uniform interpretation and application of the removal statute is essential to the statute’s effectiveness. This Court should ensure that
the same rules govern removal in every federal court.
This case is an ideal vehicle to resolve the split.
There is no threshold issue that would preclude this
Court from reaching the question presented. The
issue here is dispositive: the district court held that
Respondents’ notice of removal was untimely and
remanded the case to state court. Pet. App. 32a
(“[T]he time for removal commenced on August 31,
2018, and closed on September 30, 2018. As such,
Defendants’ removal on October 11, 2018 was untimely.”). The Eleventh Circuit vacated, and there is
no question that the Fifth Circuit would have
reached the opposite result. This Court’s resolution
of the question presented will therefore determine
whether this case proceeds in Alabama state court,
where it belongs, or in the Southern District of Alabama.
Certiorari is warranted.
STATEMENT
1. Plaintiffs are the “masters of their complaints” and may control the scope of litigation by
deciding in which forum their claims will be litigated. Standard Fire Ins. Co. v. Knowles, 568 U.S. 588,
595 (2013); see also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) (“[T]he party who
5
brings a suit is master to decide what law he will
rely upon.”). Courts historically defer to a plaintiff’s
choice of forum, including the choice between state
and federal courts, “unless the balance is strongly in
favor of the defendant.” Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508 (1947) (superseded on other
grounds by statute); see also Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255–56 (1981) (same). Federal
courts have also recognized a general preference, under our system of federalism, for cases that present
questions only of state law to be heard in state court.
Cf. United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966) (“Needless decisions of state law
should be avoided.”); see also Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Manning, 136 S. Ct. 1562,
1576 (2016) (Thomas, J., concurring) (“[A] suit belongs in state court when the complaint asserts purely state-law causes of action that do not require binding legal determinations of rights and liabilities
under [federal law].” (internal quotations and citations omitted)); Acri v. Varian Associates, Inc., 114
F.3d 999, 1001 (9th Cir. 1997) (en banc)
(O’Scannlain, J., dissenting) (“[A]bsent a strong justification, state law claims belong in state court.”).
Removal provides a narrow exception to these
principles, and statutes authorizing removal are thus
construed narrowly. Shamrock Oil Corp. v. Sheets,
313 U.S. 100, 108–09 (1941) (“Due regard for the
rightful independence of state governments . . . requires that [the federal courts] scrupulously confine
their own jurisdiction to the precise limits which the
statute has defined.”) (quoting Healy v. Ratta, 292
U.S. 263, 270 (1934)). A defendant may override a
plaintiff’s choice of forum only in certain limited circumstances. The 1789 Judiciary Act authorized re-
6
moval in cases “against an alien, or by a citizen of a
state in which the suit is brought against a citizen of
another state,” provided the amount in controversy
exceeded $500. 1789 Judiciary Act, First Cong. Sess.
I, Ch. 20, § 12. Soon after, federal courts began exercising their inherent authority to remand to state
court cases that were improperly removed. See generally, e.g., Beardsley v. Torrey, 2 F. Cas. 1188 (D.
Penn. 1822); New Jersey v. Babcock, 18 F. Cas. 82
(D.N.J. 1823).
Around the time of the Civil War, Congress expanded removal authority. In 1815, Congress made
removal available for suits related to actions taken
by customs officers or in connection with the Revenue Act without consideration of diversity of parties
or amount in controversy. William M. Weicek, The
Reconstruction of Federal Judicial Power, 1863–
1875, 13 Am. J. Legal Hist. 333, 337 (1969). In 1833,
Congress allowed for removal of any action involving
rights under any federal revenue statute, and in
1863, Congress again further expanded removal authority to encompass cases involving federal officers.
Id. at 337–38. In 1866, an amendment voided proceedings in state court after removal to ensure that
the parties involved were not subject to parallel litigation in the state and federal courts. Id. at 338.
And, in the 1875 Judiciary Act, Congress gave “plenary removal jurisdiction to the federal courts” by
expanding removal jurisdiction to include all cases
presenting a federal question, regardless of the citizenship of the parties. Id. at 340.
The 1875 Judiciary Act also altered historical
practice by “expressly authoriz[ing] the review of an
order of remand by appeal or writ of error in any suit
removed from a state court.” United States v. Rice,
7
327 U.S. 742, 748 (1946). Historically, “an order of
remand was deemed to be not reviewable by appeal
or writ of error because the order was not final.” Id.
(citing Chicago & A.R. Railroad Co. v. Wiswall, 90
U.S. (23 Wall.) 507 (1874)); but see Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 714–15 (1996) (disavowing the principle that an order remanding a removed action is not a final judgment and therefore
reviewable only by a writ of mandamus).
The 1887 Judiciary Act repealed this section of
the 1875 Act and returned to the historical rule. To
“make doubly certain” of the prohibition on appeals
of remand orders, the 1887 Judiciary Act “specifically
prohibited appeals, with the added direction that the
order of remand should be immediately carried into
execution.” Rice, 327 U.S. at 748. This provision
was later incorporated into the 1911 Judicial Code.
See Thermtron Prod., Inc. v. Hermansdorfer, 423
U.S. 336, 347–48 (1976) (citing the 1911 Judicial
Code, §§ 26, 37, 36 Stat. 1094 (1911)), abrogated on
other grounds by Quackenbush, 517 U.S. at 714–15.
Congress has since amended the removal statute,
but the general prohibition on appellate review of
removal orders has persisted. Id. In 1949, Congress
passed what is now Section 1447(d) to make clear
that “[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or otherwise.”2 Amendment of Title 18 and Title
This amendment was intended to “remove any doubt” about
“the finality of an order to remand to a State court.” Amendment of Title 18 and Title 28, United States Code, House Report
from the Committee on the Judiciary, H.R. Rep. No. 352 at 15
(1949). An earlier version of the statute, passed the year prior,
2
8
28, United States Code, Pub. L. No. 81-72 § 84, 68
Stat. 89, 101 (1949).
“There is no doubt that in order to prevent delay
in the trial of remanded cases by protracted litigation of jurisdictional issues, . . . Congress immunized
from all forms of appellate review any remand order
issued on the grounds specified in section 1447(c),
whether or not that order might be deemed erroneous by an appellate court.” Thermtron, 423 U.S. at
351. In enacting Section 1447(d), Congress clarified
that it intended to continue “the same rule of finality
previously in effect”—that “remanding a cause to the
state court is final and conclusive,” and not subject to
further review in the federal courts. Id. at 360
(Rehnquist, J., dissenting) (quoting In re Pennsylvania Co., 137 U.S. 451, 454 (1890)). This rule reflects
Congress’ judgment that permitting appeals from
remand orders “works a significant interference in
the conduct of litigation commenced in state court”
and allows the federal removal order to “become a
device affording litigants a means of substantially
delaying justice.” Id. at 354–55 (Rehnquist, J., dissenting); see also Rice, 327 U.S. at 751 (“Congress . . .
established a policy of not permitting interruption of
the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the
district court to which the cause is removed.”); cf.
Judicial Improvements and Access to Justice Act,
H.R. Rep. No. 100-889 at 6032–33 (1988) (restricting
the timing of removal toe prevent against “substan-
had mistakenly omitted the language barring appellate review
of remand orders. Id.
9
tial delay and disruption” of proceedings “after substantial progress has been made in state court.”).
Congress has since twice amended Section 1447(d) to provide limited and concrete exceptions to the general bar on appellate review of remand orders. The first amendment was part of the
1964 Civil Rights Act, and allowed for appellate review of remand orders in cases alleging equal protection or civil rights violations. 1964 Civil Rights Act,
Pub. L. No. 88-352 § 62, 63 Stat. 102 (1964); see also
id. at § 902, 62 Stat. 938. Congress intended to provide appellate review of remand orders only in a specific, narrow set of cases; the exception was meant to
ensure that cases in which the laws of a state were
used to deny individuals their civil rights could be
effectively removed to federal court. 110 Cong. Rec.
6955–56 (1964) (April 6, 1964) (Statement by Representative Albert); see also 1964 Civil Rights Act, H.R.
Rep. No. 88-914, pt. 2 at 32 (1963) (noting that “this
inability to appeal remand orders has effectively
barred citizens from obtaining a redress to their denial of civil rights.”).
The second amendment was passed as a standalone provision in 2011 and allowed appellate review
of remand orders of claims against federal officers.
2011 Removal Clarification Act, Pub. L. No. 112-51,
125 Stat. 545 (2011). The amendment was a direct
response to a decision from the Fifth Circuit denying
review of a remand order in such a case. By extending appellate review over these remand orders, Congress ensured that, where appropriate, cases against
federal officers were heard in federal, rather than
state court. See generally, 2011 Removal Clarification Act, H.R. Rep. No. 112-17(I) (2011).
10
2. This Court’s decisions interpreting Section 1447(d) have made clear that “a case removed
under [section 1446] may be remanded only in accordance with § 1447 which governs procedure.”
Thermtron, 423 U.S. at 342. Section 1447(d)’s general prohibition on appellate review does not apply to
a remand order “issued on grounds not authorized by
§ 1447(c).” Id. at 343.
In Thermtron Products, Inc. v. Hermansdorfer,
this Court held that the Sixth Circuit had authority
to review an order remanding an action to state court
based solely upon the district court’s assessment that
its crowded docket and many other cases would severely impair the plaintiffs’ “right of redress,” which
“would not be the case if the case had not been removed from the state courts.” 423 U.S. at 340–41.
Writing for the Court, Justice White observed that
“the right to remove has never been dependent on the
state of the federal court’s docket,” id. at 344 (emphasis added), and concluded that the district court
far exceeded its authority by remanding the case “on
grounds not permitted by the controlling statute”
and indeed, on grounds that had no basis in law, id.
at 345. Justice Rehnquist, joined by Chief Justice
Burger and Justice Stewart, dissented, reasoning
that “the limitation found in § 1447(d) has remained
substantially unchanged since its enactment in 1887,
and [that] this Court has consistently ruled that the
provision prohibits any form of review of remand orders.” Thermtron, 423 U.S. at 354 (Rehnquist, J.,
dissenting). Justice Rehnquist criticized the majority for “avoid[ing] the plain language of § 1447(d),”
“ignor[ing] the undoubted purpose behind the congressional prohibition,” and “effectively under-
11
min[ing] the accepted rule established by Congress
and adhered to for almost 90 years.” Id. at 355–56.
In Quackenbush v. Allstate Insurance Co., this
Court held that the Ninth Circuit had authority to
review an order remanding an action based on Burford abstention. 517 U.S. at 713. This Court concluded that such orders are final decisions that “surrender jurisdiction of a federal suit to a state court,”
id. (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11 n.11 (1983)), and that
they do “not fall into either category of remand order
described in § 1447(c)” because they are “not based
on lack of subject matter jurisdiction or defects in
removal procedure,” id. at 712.
And in Carlsbad Technologies, Inc. v. HIF Bio,
Inc., this Court held that the Federal Circuit had
authority to review a removal order that was based
on the district court’s decision not to exercise supplemental jurisdiction over state-law claims after the
federal claims had been dismissed. 556 U.S. 635,
639 (2009). Such an order, Justice Thomas explained, is not based on the district court’s “lack of
subject matter jurisdiction”; rather, “[a] district
court’s decision whether to exercise [supplemental]
jurisdiction after dismissing every claim over which
it had original jurisdiction is purely discretionary.”
Id. Nor is such an order based on any defect, timely
raised or otherwise, in the notice of removal. Justices Stevens, Scalia, and Breyer (joined by Justice
Souter) each wrote separately to reject the Court’s
willingness in prior cases to “replace [Section
1447(d)’s] clear bar on appellate review with a
hodgepodge of jurisdictional rules that have no evident basis even in common sense.” Carlsbad Tech.,
556 U.S. at 643 (Scalia, J., concurring); see also id. at
12
642 (Stevens, J., concurring) (“If we were writing on
a clean slate, I would adhere to the statute’s text.”);
id. at 645 (Breyer, J., concurring) (suggesting that
“experts in this area reexamine the matter” in light
of the confusion caused by the Court’s jurisprudence
regarding § 1447(d)’s appellate review bar). Justice
Scalia explained that the Court’s willingness to “depart[] from the literal text” created a “mess—entirely
of our own making,” and urged this Court to “return
to the court’s focus on congressionally enacted text”
and deny appellate review of remand orders that do
not fall within one of the two specifically enumerated
exceptions. Id. at 643 (Scalia, J., concurring). “[I]t
would not be unreasonable to believe that 28 U.S.C.
§ 1447(d) means what it says . . . and what it says is
no appellate review of remand orders.” Id. (cleaned
up); see also id. at 641–42 (Stevens, J., concurring)
(citing Thermtron, 423 U.S. at 354, 360 (Rehnquist,
J., dissenting)).
3. On October 12, 2017, Petitioner filed a negligence action in the Circuit Court of Hale County,
Alabama, alleging that Sarah Beaugez, a physical
therapist with Helping Hands Therapy, caused an
injury to her knee during a physical therapy session.
Petitioner brought claims under the Alabama Medical Liability Act, seeking compensatory and punitive
damages.
On October 11, 2018, Respondents filed a notice
of removal. On November 8, 2018, 28 days after the
notice of removal was filed, Petitioner moved to remand, arguing that the federal court lacked subject
matter jurisdiction because the parties were not
completely diverse. On November 26 and 27, Respondents Beaugez and Helping Hands Therapy filed
their responses. On December 4, 2018, 54 days after
13
the notice of removal was filed, Petitioner filed her
reply, arguing for the first time that Respondents’
notice of removal was untimely.
The magistrate judge held a hearing on Petitioner’s motion to remand and entered a Report and Recommendation that the motion to remand be denied.
First, the magistrate judge concluded that the parties were completely diverse. Second, the magistrate
judge acknowledged that “[c]ourts are split over the
issue of whether the timely filing of a motion to remand alleging a procedural defect, such as lack of
unanimity, is sufficient to preserve a timeliness or
other procedural objection under 1447(c),” see Pet.
App. 51a, but concluded that timeliness is a procedural defect that “must be raised within thirty days
of the Notice of Removal,” see Pet. App. 54a.
Petitioner filed objections to the Report and Recommendation, and the district court rejected the
magistrate judge’s conclusion that Petitioner waived
her timeliness objection to Respondents’ motion to
remand. The district court relied on Eleventh Circuit precedent holding that a district court may remand sua sponte on grounds that were not raised in
a plaintiff’s motion to remand, concluding that it
could consider the procedural defect Petitioner identified on reply. Pet. App. 22a–23a. The district court
concluded the Respondents’ motion to remand was
untimely and remanded the case to state court. Pet.
App. 32a. (“Defendants’ removal on October 11, 2018
was untimely.”).
The Eleventh Circuit vacated. It concluded that
it had jurisdiction to hear the appeal under 28 U.S.C.
§ 1447(d). Pet. App. 6a (quoting In re Bethesda
Mem’l Hosp., Inc., 123 F.3d 1407, 1409 (11th Cir.
1997)). Though Petitioner timely filed the motion to
14
remand, the court reasoned, she identified the procedural defect only in her reply, which was filed 54
days after the notice of removal. Pet. App. 6a. The
Eleventh Circuit thus concluded that the district
court’s remand order was based on neither a “(1) lack
of subject matter jurisdiction, nor (2) a motion to remand based on a procedural defect made within 30
days after the notice of removal.” Pet. App. 7a. (citing In re Bethesda Mem’l Hosp. Inc., 123 F.3d at
1409). On that basis, the court concluded that the
remand order fell outside the scope of the bar on appellate review codified in 28 U.S.C. § 1447(d). For
the same reason, the court vacated the remand order, holding that “the district court had no authority
to remand the case” on the basis of a procedural defect in removal that was not timely raised. Pet. App.
8a–9a.
REASONS FOR GRANTING THE WRIT
This case meets all of the Court’s criteria for
granting certiorari.
First, the question presented concerns an intractable, acknowledged split on a recurring question
that only this Court can resolve.
Second, the question presented is important. It
concerns whether a plaintiff who articulates a procedural defect in a defendant’s notice of removal in a
reply filed outside the 30-day limit set forth in Section 1447(c) must proceed in state or federal court.
The circuit split on this question means that Section 1447(c) operates differently in different jurisdictions, and that some cases removed to a district court
within the Ninth and Eleventh Circuits will proceed
in federal court while identical cases removed to a
15
district court within the Fifth Circuit will be remanded to state court.
Third, the decision below is incorrect. The Eleventh Circuit’s decision contradicts the plain text of
the statute, Congress’s intent, and this Court’s precedent.
Fourth, this case is an ideal vehicle to resolve the
question.
Certiorari is warranted.
A. The Question Presented Implicates an Intractable, Acknowledged Circuit Split
That Only This Court Can Resolve.
Three courts of appeals have considered whether
a plaintiff who articulates a procedural defect in a
defendant’s notice of removal in a reply filed outside
the 30-day limit set forth in Section 1447(c) must
proceed in state or federal court. Those decisions
have produced an active 2-1 split.
1. Two Courts of Appeals Have Held That
a District Court Exceeds its Statutory
Authority by Remanding Based on a
Procedural Defect Identified in a Reply in Support of Remand.
Two courts of appeals have held that a district
court exceeds its statutory authority under 28 U.S.C.
§ 1447(c) by remanding a case based on a procedural
defect when the plaintiff files a motion to remand
within 30 days of the notice of removal but raises a
procedural defect in a reply filed outside the 30-day
limit and therefore, that the court of appeals has ju-
16
risdiction to review such orders under 28 U.S.C.
§ 1447(d).
In Northern California District Counsel of Laborers v. Pittsburg-Des Moines Steel Co., the plaintiffs
filed a motion to remand within 30 days of removal
“based solely on the argument that the forum selection clause required remand.” 69 F.3d at 1037.
Plaintiffs’ reply in support of remand, which was
filed more than 30 days after removal, identified for
the first time “a defect in removal procedure.” Id.
The district court entered a remand order, and the
Ninth Circuit vacated. The Ninth Circuit held “that
1447(c) prohibits a defect in removal procedure from
being raised more than 30 days after the filing of the
notice of removal, regardless of whether a timely remand motion has been filed.” Id. at 1038. The court
reasoned that the plain text of Section 1447(c) “requires that a defect in removal procedure be raised
in the district court within 30 days after the filing of
the notice of removal.” Id. at 1037. The court further explained that the “purpose of the 30-day time
limit is to resolve the choice of forum at the early
stages of litigation, and to prevent the shuffling of
cases between state and federal courts after the first
thirty days.” Id. at 1038. This purpose, the court
reasoned, “would be defeated if a party were free to
raise such a procedural defect more than 30 days after the filing of the notice of removal.” Id. And, because the district court lacked power to issue the remand order, the Ninth Circuit concluded, it had
jurisdiction to review the merits of the order. Id.
In the decision below, the Eleventh Circuit
aligned itself with the Ninth Circuit. The court relied on its view of the plain text of Section 1447(c),
concluding that “because Shipley did not file a mo-
17
tion to remand based on a procedural defect within
the 30-day time limit required by the statute[, she]
forfeited any procedural objection to removal.” Pet.
App. 7a. Consequently, the Eleventh Circuit held, it
has “jurisdiction to review and to vacate the remand
order.” Pet. App. 6a. In so holding, the Eleventh
Circuit acknowledged that the “circuits have split on
this issue,” Pet. App. 4a, and distinguished its earlier
decision in Velchez v. Carnival Corp., which “held
that when a plaintiff files a timely motion to remand
based on a procedural defect, the court can order remand based on a different procedural defect that the
plaintiff never raised,” Pet. App. 8a (citing Velchez v.
Carnival Corp., 331 F.3d 1207, 1210 (11th Cir. 2003)
(holding that a remand order based on a procedural
defect that is different from one raised in a timely
motion to remand is nonetheless insulated from appellate review under Section 1447(d))).
2. The Fifth Circuit Has Held a District
Court Does Not Exceed its Statutory
Authority by Remanding Based on a
Procedural Defect Identified in a Reply in Support of Remand.
The Fifth Circuit reached the opposite conclusion
in circumstances indistinguishable from those presented here. In BEPCO, LP v. Santa Fe Minerals,
Inc., the plaintiff filed a motion to remand within 30
days after removal based on a provision in the parties’ contract and on a defendants’ improper joinder.
675 F.3d 466. Plaintiff’s reply in support of remand,
which was filed more than 30 days after removal,
also identified a procedural defect—that removal was
untimely. The district court entered a remand order,
18
and the Fifth Circuit affirmed. The Fifth Circuit
held that whether “a removal defect is not raised by
a plaintiff in the motion to remand, or is raised more
than 30 days after removal, does not matter.” Id. at
471. Where a plaintiff files a “timely motion to remand,” and the district court relies “on a permissible
Section 1447(c) ground,” “the district court’s remand
order [is] unreviewable on appeal.” Id. The court
relied on “the unambiguous statutory language” to
conclude that it is the timing of a remand motion,
rather than the timing of the presentation of a removal defect, that “matters for a timeliness analysis
under Section 1447(c)” and for purposes of determining appellate jurisdiction to review the order. Id.3
B. The Issue Is Important and Will Not Be
Resolved Without a Decision from This
Court.
This split among the courts of appeals is entrenched and unlikely to resolve without action by
Other courts of appeals have also struggled to interpret and
apply Section 1447(d)’s appellate review bar. The Tenth Circuit, for example, has interpreted Section 1447(d) to find that
“‘any defect’ applies solely to failures to comply with the statutory requirements for removal,” and that a remand order based
on common law principles of “waiver by participation” fell outside the scope of Section 1447(d). City of Albuquerque v. Soto
Enters., 864 F.3d 1089, 1096, 1098 (10th Cir. 2017). The Second Circuit, by contrast, has reached the opposite conclusion,
holding that, because “Congress intended the phrase ‘defect in
removal procedure’ to be interpreted broadly,” it did not have
jurisdiction to review a remand order based on common law
principles that were later codified into statute. Pierpoint, 94
F.3d at 817–19.
3
19
this Court. Four circuits have acknowledged the
split of authority on the question presented, and
there is no realistic prospect that the conflict will
disappear on its own. This issue need not percolate
further; three circuits have squarely decided the
question presented, and the arguments on both sides
of the split have been fully aired.
Not only is the split clear and established, but it
is also important and recurring. “The removal statute . . . was intended to be uniform in its application,
unaffected by local law definition or characterization.” Shamrock Oil & Gas Co., 313 U.S. at 104; see
also Grubbs v. General Elec. Credit Corp., 405 U.S.
699, 705 (1972) (“[T]he removal statutes and decision
of this Court are intended to have uniform nationwide application.”); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 134 (1995) (Stevens, J., concurring) (noting the importance of the “uniform
treatment of all remands, regardless of the party initiating the removal or the court from which the case
is removed”). The split acknowledged by the Eleventh Circuit in the decision below undermines these
vital interests. It allows parties in some jurisdictions, but not others, to seek appellate review of remand orders and, by doing so, to “interrupt[] . . . litigation of the merits of a removed case by prolonged
litigation of questions of jurisdiction” in the federal
courts. Powerex Corp. v. Reliant Energy Serv., Inc.,
551 U.S. 224, 238 (2007) (quoting Rice, 327 U.S. at
751).
The varying approaches taken by the courts of
appeals not only create unnecessary confusion with
respect to the proper allocation of cases between the
state and federal courts but also can encourage forum-shopping. Cf. Carlsbad Tech. Inc., 556 U.S. at
20
643 (Scalia, J., concurring) (noting that exceptions to
section 1447(d)’s appellate review bar have created
confusion among the lower courts). “Appellate courts
must take [section 1447(d)’s] jurisdictional prescription seriously, however pressing the merits of the
appeal might seem” and however incorrect the district court’s decision may appear. Powerex Corp., 551
U.S. at 238–39. Allowing this split to persist creates
intolerable geographic disparities and threatens to
introduce another element of gamesmanship into the
removal process.
C. The Decision Below is Incorrect.
The decision below conflicts with the plain text of
Section 1447, Congress’s clear intent, and this
Court’s decisions.
1. Section 1447(c) provides that “[a] motion to
remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under section 1446(a).” The decision below misreads this provision by imposing a requirement
found nowhere in the text: that all removal defects
must also be identified within 30 days after the filing
of a notice of removal.
“On its face, Section 1447(c)’s 30-day requirement
governs the timeliness of the filing of a motion to remand, not the time limit for raising removal defects.”
BEPCO, L.P., 675 F.3d at 471. A motion to remand
“establishes that the moving party does not want to
acquiesce in the federal forum despite any procedural defects.” Velchez, 331 F.3d at 1210. Therefore,
“[b]y its own terms, § 1447(c) is limited to motions,
21
not issues.” Schexnayder v. Entergy Louisiana, Inc.,
394 F.3d 280, 284 (5th Cir. 2004).
Indeed, when a party is required to identify a particular issue, as opposed to simply file a particular
motion, within a set period of time, the text says so
explicitly. Compare 28 U.S.C. § 1447(c), with Fed. R.
Civ. P. 60 (enumerating the bases for a motion for
relief from judgment and setting a one-year time limit for motions based on specified grounds for relief);
see also Fed. R. Civ. P. 12(h) (specifying that certain
bases for dismissal are waived if not raised in the
initial motion to dismiss or raised within a specified
period of time). Congress has not done so here. Unlike various other federal rules, Section 1447(c) does
not differentiate between the various procedural bases on which remand may be granted or apply the
30-day time limit to individual issues.
Rather, Section 1447(c) describes the vehicle a
plaintiff must use to seek remand—“a motion”—and
defines the timing requirement for such a motion—
“30 days after the filing of the notice of removal,” unless the motion is based on a lack of subject matter
jurisdiction. Under the plain text of the statute,
then, “what does matter is the timing of the remand
motion,” not the timing of the presentation of a removal defect. BEPCO, L.P., 675 F.3d at 471–72.
Because the remand motion here was timely, the decision below that the district court lacked the power
to remand is incorrect.
2. The decision below also frustrates Congress’s
clear intent. Section 1447(c)’s 30-day time limit was
meant to ensure that neither the court nor the parties were subject to the burden of “prolonged litigation of questions of jurisdiction” before the case could
be resolved on the merits. Rice, 327 U.S. at 752; see
22
also Judicial Improvements and Access to Justice
Act, H.R. Rep. No. 100-889 at 6032–33 (1988). And
Section 1447(d)’s broad prohibition on appellate review was similarly designed to prevent additional
delay or interference with the orderly resolution of
the case. Thermtron, 423 U.S. at 351 (citing Rice,
327 U.S. at 751); see also id. at 355 (Rehnquist, J.,
dissenting) (“It is clear that the ability to invoke appellate review . . . provides a significant opportunity
for additional delay.”).
Indeed, Congress has consistently and expressly
prohibited appeals from orders remanding a case to
state court since 1887 in order to ensure the swift
and efficient resolution of cases on their merits in the
appropriate court. Rice, 327 U.S. at 748–49. The
Eleventh Circuit’s decision does not serve Congress’s
goal of ensuring that motions to remand are decided
promptly: Petitioner’s motion to remand was timely
filed and promptly informed the district court that
she did not consent to litigation in federal court, and
allowing her to raise an issue in reply is consistent
with ensuring that remand is resolved expeditiously.
The Eleventh Circuit’s decision to exercise jurisdiction over the appeal further frustrates this purpose
by delaying the resolution of the remand motion.
3. Finally, the decision below runs contrary to
this Court’s precedent. This Court has consistently
permitted appellate review of a remand order only
when that order was not based on either the court’s
lack of subject matter jurisdiction or any procedural
defect inherent in the notice of removal. See, e.g.,
Thermtron Prod., Inc., 423 U.S. at 344–45;
Quackenbush, 517 U.S. at 713; Carlsbad Tech. Inc.,
556 U.S. at 639. In other words, this Court has prohibited appellate review unless the underlying re-
23
mand order was based on grounds that were entirely
unrelated to the timing or sufficiency of the removal
notice or to the district court’s power to hear the underlying case. This Court has never expressly allowed, or even suggested, that appellate review is
appropriate in cases like this, where a remand order
was based on a procedural defect that was raised and
litigated in the district court in connection with a
timely motion to remand. Cf. Carlsbad Tech. Inc.,
556 U.S. at 643 (Scalia, J., concurring) (noting that
Section 1447(d) establishes a “clear bar on appellate
review” in all circumstances other than civil rights
and federal officer removal). The decision below
stretches this Court’s interpretation of Section 1447(d) far beyond recognition by asserting appellate jurisdiction in such circumstance.
The decision below is also contrary to the rule
that “removal statutes should be construed narrowly
with doubts resolved against removal.” Allen v.
Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003);
see also Shamrock Oil & Gas Corp., 313 U.S. at 108
(“[T]he policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling
for strict construction of [removal statutes].”). Rather, the decision below does exactly the opposite,
and improperly reads Section 1447(d) to expand appellate jurisdiction far beyond both the statute’s
plain text and this Court’s precedent in the area.
The decision below also departs from precedent
barring appellate review when a district court grants
a party’s motion to remand, but relies on a procedural defect not asserted by the moving party. See
Velchez, 331 F.3d at 1210; Schexnayder, 394 F.3d at
285. In such circumstances, at least two courts of
appeals have expressly held that Section 1447(d)
24
prohibits appellate review because the district court’s
decision to remand is based “on a timely § 1447(c)
motion” and predicated on a procedural defect in removal. Velchez, 331 F.3d at 1209. Moreover, because the moving party has made clear that they
“want[] to go back to state court,” the remand order
was not issued sua sponte and is therefore not reviewable.4 Id. at 1210. The court below attempted to
distinguish the present case by noting that the motion here was initially based on a lack of subject matter jurisdiction, but did not explain why that fact
alone was sufficient to override the plain text of Section 1447(d) and Congress’s clearly-stated intent to
preclude appellate review of remand orders. Pet.
App. 6a.
Nor did the court below explain why appellate review should be precluded where the district court
raises a basis for removal sua sponte without giving
the parties an opportunity to respond, see Velchez,
331 F.3d at 1210, but not in this case, where the defendants had full opportunity to address, both orally
and in writing, the arguments related to the timeliness of removal. That the parties here repeatedly
addressed in the district court the timeliness issue
4 The
courts of appeals agree that a district court’s decision
returning a case to state court in the absence of a motion to
remand is reviewable because of the concern that such remand
“might deprive both sides of their preferred forum” and of a
meaningful opportunity to be heard. Velchez v. Carnival Corp.,
331 F.3d 1207, 1210 (11th Cir. 2003). See also Academy of
Country Music v. Continental Casualty Co., 991 F.3d 1059,
1067–68 (9th Cir. 2021); Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 197 (4th Cir. 2008); Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995); In re Continental Casualty Co., 29 F.3d 292, 294–95 (7th Cir. 1994).
25
articulated in Petitioner’s reply demonstrates that
appellate review of this issue is not justified here.
See in re Continental Casualty Co., 29 F.3d 292, 294–
95 (7th Cir. 1994).
Moreover, under ordinary waiver rules, the district court had discretion to consider Shipley’s arguments with respect to the procedural defects in removal. See, e.g., Beaird v. Seagate Tech., Inc., 145
F.3d 1159, 1164 (10th Cir. 1998) (holding that the
district court has discretion to consider an argument
raised for the first time on reply after giving the other side a chance to respond). Nothing in either the
text of the statute or in this Court’s precedent suggests that, when the district court exercises this discretion, the remand order that follows somehow becomes reviewable on appeal.
D. This Case Is an Ideal Vehicle.
This case is an ideal vehicle for resolving the
question presented.
The question was briefed and decided below, and
is dispositive here. This Court’s interpretation of
Section 1447(d) will determine whether the merits of
Petitioner’s case are heard in state or federal court.
The district court expressly held that the procedural
defect articulated in Petitioner’s reply in support of
her motion to remand—that Respondents’ notice of
removal was untimely—was meritorious. Pet. App.
32a (“[T]he time for removal commenced on August
31, 2018, and closed on September 30, 2018. As
such, Defendants’ removal on October 11, 2018 was
untimely.”). The Eleventh Circuit acknowledged a
split of authority on the question presented, squarely
decided it, and declined to follow the Fifth Circuit.
26
Pet. App. 4a–5a. This case cleanly presents the
question, unobstructed by any threshold issues, and
this petition seeks review of a published, precedential opinion.
Further, Petitioner’s preference to litigate in state
court is well-founded. Not only is state court her
chosen forum, but also it is the traditional forum for
resolution of these kinds of private disputes and is
the final authority on questions of state law, on
which the merits of this case turn. See West v. American Tel. & Tel. Co., 311 U.S. 223, 236–37 (1940)
(state courts have final say over questions of state
law).
This case provides the Court with the opportunity
to clarify that Section 1447(d) bars appellate review
in cases like this, where there is a timely motion to
remand, and to ensure that these cases, which are
properly decided by the state courts, are able to proceed expeditiously without unnecessary delays before
the federal courts of appeals.
27
CONCLUSION
For the reasons set forth above, the petition for a
writ of certiorari should be granted.
Respectfully submitted,
DAVID A. O’NEIL
Counsel of record
DEBEVOISE & PLIMPTON LLP
801 Pennsylvania Ave. N.W.
Washington, D.C. 20004
(202) 383-8000
daoneil@debevoise.com
MATTHEW SPECHT
ANAGHA SUNDARARAJAN
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
ROBERT PRINCE
G. COE BAXTER
PRINCE, GLOVER & HAYES
1 CYPRESS POINT
701 RICE MINE ROAD N.
TUSCALOOSA, AL 35406
(205) 345-1234
rprice@princelaw.net
September 28, 2021
APPENDIX
1a
[PUBLISH]
IN THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
No. 19-13812
D.C. Docket No.
2:18-cv-00437-CG-B
BETTY R. SHIPLEY,
Plaintiff - Appellee,
versus
HELPING HANDS THERAPY,
Greensboro Out-Patient Clinic,
a.k.a. New Hope, LLC
d.b.a. Helping Hands Therapy,
PT SARAH BEAUGEZ,
Defendants - Appellants.
_____________________
Appeal from the United States District Court
for the Southern District of Alabama
_____________________
(May 6, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit
Judges.
WILSON, Circuit Judge:
2a
This appeal presents an issue of first impression
in our circuit: whether a district court has authority
to remand a case based on a procedural defect in
removal when (1) a motion to remand for lack of
subject matter jurisdiction is filed within 30 days of
the notice of removal, but (2) a procedural defect is
not raised until after the 30-day statutory time limit.
Although a remand order based on a procedural
defect in removal generally is unreviewable, we have
jurisdiction to review such an order when a district
court exceeds its statutory authority. Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 711–12 (1996).
Because we conclude that a district court exceeds its
authority by remanding in this circumstance, we
have jurisdiction to review the remand order. And
for the same reason, we vacate the order remanding
the case to state court.
I.
On October 12, 2017, Plaintiff Betty Shipley filed
this negligence action in Alabama state court,
alleging that Sarah Beaugez, a physical therapist
with Helping Hands Therapy, caused an injury to
Shipley’s knee during a physical therapy session.
Shipley brought claims against Beaugez and Helping
Hands Therapy (Defendants) under the Alabama
Medical Liability Act, seeking compensatory and
punitive damages.
On October 11, 2018, Defendants filed a notice of
removal. Shipley filed a timely motion to remand—
within 30 days after removal—on November 8, 2018,
arguing that there was no subject matter jurisdiction
in federal court because the parties lacked complete
3a
diversity.1 She did not raise any procedural defects
with removal in that motion. After Defendants
responded to her motion, Shipley filed a reply on
December 4, 2018—54 days after the notice of
removal. In her reply, she raised a procedural defect
with removal for the first time, arguing that
Defendants failed to remove the case within the
statutory timeframe.
The magistrate judge entered a Report and
Recommendation that the motion to remand be
denied because Shipley’s objection to the timeliness
of removal was itself untimely. But the district court
disagreed. It found, first, that Shipley had not
waived her objection to the removal process. Second,
it found that Defendants did not file the notice of
removal within 30 days after they became aware that
the case was removable. Accordingly, the district
court determined that removal was defective and
remanded the case to Alabama state court. This
appeal followed.
II.
We review questions of statutory interpretation
de novo. Truesdell v. Thomas, 889 F.3d 719, 723
(11th Cir. 2018).
III.
On appeal, Defendants argue that we should
vacate the district court’s remand order. They argue
that, although remand orders generally are
It is now clearly established that the district court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
1
4a
unreviewable, we have jurisdiction to review this
order because it was not prompted by a timely
motion to remand based on a procedural defect.
Entwined with this jurisdictional issue is
Defendants’ contention that Shipley waived any
argument that there was a procedural defect in
removal by failing to timely raise it.
Shipley
responds that she did not waive her objection to the
timeliness of removal and that, as a threshold
matter, the district court’s remand order is
unreviewable.
We begin with the threshold jurisdictional
question of whether the district court’s remand order
is reviewable. Section 1447(d) provides that “[a]n
order remanding a case to the State court from which
it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C. § 1447(d). But there are
exceptions to this general prohibition on appellate
review. The Supreme Court has explained that §
1447(d) applies “only [to] remands based on grounds
specified in § 1447(c).” Quackenbush, 517 U.S. at
711–12 (1996) (quotation omitted).
We have
jurisdiction to review whether the district court
remanded a case by exceeding its statutory authority
under § 1447(c). See Corp. Mgmt. Advisors, Inc. v.
Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th
Cir. 2009).
We have not yet addressed whether a district
court exceeds its statutory authority by remanding a
case based on a procedural removal defect when the
plaintiff files a motion to remand within 30 days of
the notice of removal, but raises a procedural defect
only outside the 30-day time limit. Our sister
circuits have split on this issue. Compare BEPCO,
5a
L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 471
(5th Cir. 2012) (holding that the district court was
within its statutory authority to remand in this
circumstance), with N. Cal. Dist. Council of Laborers
v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038
(9th Cir. 1995) (holding that the district court
exceeded its statutory authority to remand in this
circumstance).
Because this is a question of statutory
interpretation, our analysis starts with § 1447(c)’s
plain text. Lowery v. Ala. Power Co., 483 F.3d 1184,
1199 (11th Cir. 2007).
A motion to remand the case on the basis of any
defect other than lack of subject matter
jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.
28 U.S.C. § 1447(c). We have interpreted this
language to mean that a remand order pursuant to §
1447(c) must be “openly based” on (1) lack of subject
matter jurisdiction, or (2) “a motion to remand the
case filed within 30 days of the notice of removal
which is based upon a defect in the removal
procedure.” 2 In re Bethesda Mem’l Hosp., Inc., 123
F.3d 1407, 1409 (11th Cir. 1997).
Our precedent shows that § 1447(c) governs only remands
for lack of subject matter jurisdiction or defects in removal
procedure and does not preclude remand on grounds other than
these, such as contractual forum-selection clauses. Snapper,
2
6a
Here, remand was for a defect in the removal
procedure, rather than for lack of subject matter
jurisdiction. See Moore v. N. Am. Sports, Inc., 623
F.3d 1325, 1329 (11th Cir. 2010) (per curiam)
(holding that “timeliness of removal is a procedural
defect—not a jurisdictional one”). Therefore, our
task is to determine whether the remand order is
based on “a motion to remand the case filed within
30 days of the notice of removal which is based upon
a defect in the removal procedure.” In re Bethesda
Mem’l Hosp., Inc., 123 F.3d at 1409. If so, the
remand order is “immune from review under §
1447(d).” Quackenbush, 517 U.S. at 712. If not, the
district court exceeded its authority under § 1447(c),
meaning we have jurisdiction to review and to vacate
the remand order.
We conclude that the remand order is not based
on such a motion. Shipley filed a motion that was
timely, but it was based on lack of subject matter
jurisdiction—not a procedural defect. Her reply was
based on a procedural defect—timeliness of removal.
But it was filed 54 days after the notice of removal,
well outside the 30-day timeframe set forth by the
statute. See 28 U.S.C. § 1447(c). Neither Shipley’s
motion nor her reply brief was “[a] motion to remand
the case on the basis of any defect other than lack of
subject matter jurisdiction . . . made within 30 days
after the filing of the notice of removal.”
Id.
Therefore, when the district court remanded because
of a procedural defect, it did not base its order “on
grounds specified in § 1447(c).” Quackenbush, 517
Inc. v. Redan, 171 F.3d 1249 (11th Cir. 1999) (reaching the
merits and affirming remand based on forum-selection clause).
7a
U.S. at 712. And as a result, the remand order is not
“immune from review under § 1447(d).” Id.
Seeking to reconcile her position with the plain
language of the statute, Shipley argues that her
reply, in which she first raised a procedural defect,
was effectively an amendment to her earlier timely
motion for remand. But there is simply nothing in
the district court’s remand order to suggest that the
court construed Shipley’s later motion as an
amendment to her earlier motion. Instead, the
district court’s reasoning was that it could remand
when a plaintiff timely filed a motion to remand,
even if the motion did not raise a procedural defect.
So, as we have explained, the district court’s order is
“openly based” on a ground that is neither (1) lack of
subject matter jurisdiction, nor (2) a motion to
remand based on a procedural defect made within 30
days after the notice of removal. See In re Bethesda
Mem’l Hosp. Inc., 123 F.3d at 1409.
For the same reason—because Shipley did not file
a motion to remand based on a procedural defect
within the 30-day time limit required by the
statute— Shipley forfeited any procedural objection
to removal. 3 In finding that Shipley’s procedural
3
While the district court and the parties refer to “waiver,” this
is really an issue of “forfeiture.”
Waiver refers to the
“intentional relinquishment or abandonment of a known right”
whereas forfeiture refers to the “failure to make the timely
assertion of a right.” United States v. Olano, 507 U.S. 725, 733
(1993). Because the question here is whether Shipley timely
asserted her right to object to a defect in the removal process,
we use the term forfeiture.
8a
objection was preserved, the district court found
persuasive our decision in Velchez v. Carnival Corp.,
331 F.3d 1207 (11th Cir. 2003), although the court
recognized that the case was not directly on point. In
Velchez, we held that when a plaintiff files a timely
motion to remand based on a procedural defect, the
court can order remand based on a different
procedural defect that the plaintiff never raised. Id.
at 1210. That holding does not conflict with our
decision today. The plaintiff in Velchez filed a
motion making a procedural objection to removal
within 30 days of the notice of removal as required
by the statute, whereas Shipley did not. Finding
that our holding is not inconsistent with our decision
in Velchez, we rely on the plain statutory language in
concluding that Shipley forfeited any procedural
objections by failing to raise them within the
timeframe required by the statute.
IV.
In conclusion, § 1447(c) allows a district court to
remand based on lack of subject matter jurisdiction
or upon a timely motion to remand on the basis of a
procedural defect. The district court’s remand order
is based on neither of those grounds.
Shipley
untimely raised a procedural defect in removal, thus
forfeiting that objection. As a result, the district
court had no authority to remand the case on that
The parties’ briefing also focuses on whether removal was
timely. Because Shipley waived her objection to the defect in
removal, we need not reach that question.
9a
basis. Therefore, we vacate the order remanding the
case
to
state
court.
VACATED
10a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
ALABAMA
NORTHERN DIVISION
BETTY R. SHIPLEY,
Plaintiff,
vs.
HELPING HANDS
THERAPY )
et. al.,
Defendants.
)
)
)
)
) CIVIL ACTION NO.
)18-0437-CG-B
)
)
)
)
)
ORDER
This matter is before the Court on Plaintiff’s
Motion to Remand. The Magistrate Judge has
entered
a
Report
and
Recommendation
recommending that Plaintiff’s motion be denied, to
which Plaintiff has filed an Objection. (Doc. 42).
After review of the relevant pleadings, the
undersigned finds Plaintiff’s objection compelling, in
part. As such, for the reasons set forth herein below,
Plaintiff’s Motion to Remand is GRANTED.
11a
BACKGROUND1
Plaintiff, Bettye R. Shipley (“Shipley” or
“Plaintiff”), commenced this action on October 12,
2017, in the Circuit Court of Hale County, Alabama.
(Doc. 1-1at 3). In her complaint, Shipley names as
Defendants Helping Hands Therapy/Greensboro
Out-Patient Clinic and Sarah Beaugez, PT. (Id.).
Shipley asserts that she had a left knee replacement
and underwent prescribed physical therapy with
Helping Hands Therapy, located in Greensboro,
Alabama, to regain strength and range of motion in
her left knee. Shipley contends that, on September
8, 2016, Defendant Sarah Beaugez, a physical
therapist with Helping Hands Therapy, forced her
leg to bend to fourteen degrees beyond her tolerance,
and in so doing, caused her left knee replacement to
fail. (Id. at 3-4). Shipley contends that she was
unable to walk or do anything for two weeks, that
she is unable to walk properly and needs another
surgery, that she is in constant pain and requires
daily pain medication, and that she must use a wheel
chair and a riding buggy in order to get around
places such as the grocery store. (Id.). Shipley
asserts that Beaugez acted negligently and with
wantonness, and seeks compensatory and punitive
damages. (Id.)
On October 11, 2018, New Hope LLC d/b/a
Helping Hands Therapy/Greensboro Out-patient
For the sake of judicial economy, the information provided in
the Background and Standard of Review is repeated from
Magistrate Judge Bivins’ Report and Recommendation and is
only updated to include Plaintiff’s objection (Doc. 42) and the
undersigned’s analysis of the same.
1
12a
Clinic filed a Notice of Removal. (Doc. 1). On the
same date, Defendant Beaugez filed a notice of
consent and joinder in the removal.
(Doc. 3).
Defendants assert the existence of complete diversity
because Shipley is a resident of Alabama; New Hope
LLC is a Mississippi corporation, with its principal
place of business in Meridian, Mississippi, and its
three members are Jia Liu, Roshanda Lankford, and
Bailing Wang, residents of Georgia, Mississippi, and
Georgia respectively.2 (Doc. 1-2). Defendants further
contend that Defendant Beaugez was a resident of
Mississippi at the time the lawsuit was filed in
October 2017 and that she had an intent to remain
there at that time. (Doc. 1 at 3).
With respect to the amount in controversy,
Defendants contend that on May 24, 2018, in
response to Helping Hands’ interrogatories, Shipley
claimed to be housebound for most of the time since
her injury on September 8, 2016, and that she now
requires the use of a cane and has slept in a recliner
for over two to three years. She also indicated that
she had to have another surgery in January 2018
and that she had filed a claim for disability due to
the injuries she sustained as a result of Beaugez’s
actions. (Doc. 1-1 at 151, Plaintiff’s Interrogatory
Responses, Nos. 10, 11, and 14).
Defendants assert that subsequent thereto,
Helping Hands issued Requests for Admissions to
Shipley requesting that she admit or deny that that
her damages exceed $75,000 and that she would
Defendants later clarified that Liu, Lankford, and Wang are
citizens of Georgia, Mississippi, and Georgia respectively. (Doc.
18-1 at 3)
2
13a
accept more than $75,000.(Doc. 1, Doc. 1-1 at 16162). Shipley responded that she was unable to admit
or deny the admission requests, and in response
thereto, Defendants requested that she amend her
discovery responses. (Id.). When Shipley refused to
do so, Helping Hands filed a motion to compel in
state court and requested an order directing Shipley
to supplement her responses by October 1, 2018.
(Id. at 6). The state court scheduled the matter for a
hearing on November 5, 2018, which was more than
one year after Shipley had filed her complaint in
state court. Defendants requested that the hearing
date be moved up, but Shipley refused. (Id. at 10).
Defendants contend that this case became
removable on October 1, 2018, when Shipley refused
to respond to Defendants’ requests regarding
damages with full knowledge that the one-year
limitation for removal was approaching. (Doc. 1-1 at
10).
Defendants further assert that Plaintiff’s
refusal to limit her damages and refusal to agree to
moving up the hearing date for the summary
judgment motion shows an intent to dodge
jurisdictional inquiries in an effort to defeat removal
jurisdiction. (Id.). According to Defendants, those
refusals, coupled with the injuries claimed and
damages sought in Shipley’s complaint and
interrogatory responses provided Defendants with
the evidence necessary to ascertain that Plaintiff was
seeking more than $75,000 and unambiguously
establishes that the amount in controversy exceeds
$75,000. Defendants thus argue that the case was
timely removed. (Id.)
Shipley filed her motion to remand on November
8, 2018. (Doc. 10). In her motion to remand, Shipley
14a
argues that a record from the Alabama Secretary of
State clearly shows that Helping Hands Therapy is
an Alabama limited liability company incorporated
in Alabama; thus, there is no diversity jurisdiction.
(Doc. 10at 4). Shipley further asserts that even if
Helping Hands Therapy is a trade name for a
Mississippi business, at the time the lawsuit was
filed, its principal place of business was Alabama
under the “nerve center test” given that all three of
its clinics are located in Alabama. (Id. at 5). Shipley
contends that Meridian, Mississippi cannot possibly
be Helping Hands’ “nerve center” because there is no
corporate activity occurring there, as all of its clinics
are located in Alabama. (Id.)
With respect to the amount in controversy,
Shipley asserts that she “does not intend to waive an
argument that the amount in controversy is less
than $75,000” and “that the issue is moot without
complete diversity.”
(Id. at 7).
Plaintiff also
contends that contrary to Defendants’ assertion, she
refused to move up the hearing date in state court
because the motion to compel was “obviously
frivolous,” and Defendants’ only goal was to try to
establish diversity jurisdiction. (Id. at 8).
In Defendant Beaugez’s response in opposition to
Shipley’s motion to remand (Doc. 16), Beaugez
asserts that the sole basis for Shipley’s motion is her
contention that Helping Hands is a citizen of
Alabama. Beaugez notes that Shipley made no
argument contesting the amount in controversy and
offered no evidence to rebut Helping Hands’ showing
that the amount in controversy is satisfied. (Id.).
Defendant Helping Hands also filed a response in
opposition to Shipley’s motion. (Doc. 14). Helping
15a
Hands argues that Shipley’s motion actually bolsters
Defendants’ contention that the amount in
controversy exceeds $75,000. (Doc. 18). According to
Helping Hands, Shipley has indicated that she is
seeking compensatory and punitive damages for
significant physical harm, increased medical costs,
pain, suffering and other damages, that she cannot
walk properly and is in constant pain and that she
takes pain medication daily and uses a wheelchair
and riding buggy at places such as the grocery store.
Helping Hands asserts that such evidence is
sufficient to establish that the amount in controversy
exceeds $75,000. (Id. at 7).
With respect to diversity, Helping Hands
contends that contrary to Shipley’s assertions, for
diversity purposes, a limited liability company,
unlike a corporation, is a citizen of any state of which
a member of the company is a citizen, and it matters
not where the company was formed or has its
principal place of business. (Id. at 6). Helping
Hands further contends that the uncontroverted
evidence establishes that Helping Hands Therapy,
LLC was not formed until March 2018 and that the
allegations in Plaintiff’s complaint relate to services
provided at a clinic operated by New Hope, LLC,
which was doing business under the trade name
Helping Hands Therapy. (Id. at 5). Additionally,
Defendant asserts that at the time this lawsuit was
filed, and at the time of removal, New Hope, LLC
d/b/a Helping Hands Therapy, had three members,
namely Jia Liu, Roshanda Lankford, and Bailey
Wang, who were citizens of Georgia, Mississippi, and
Georgia respectively. (Id. at 6). Helping Hands also
asserts that it has demonstrated, and Shipley has
16a
not contested, that she is a citizen of Alabama, and
Sarah Beaugez is a citizen of Mississippi. Thus,
diversity of citizenship has been established. (Id.).
On December 4, 2018, Shipley filed her reply to
Defendants’ response in opposition to her motion to
remand. (Doc. 21). In her reply, Shipley argues that
the removal was untimely. (Id. at 1). According to
Shipley, while Defendants contend that they did not
know that the amount in controversy exceeded
$75,000 until October 1, 2008, her factual allegations
did not change between the filing of her complaint on
October 11, 2017, and October 1, 2018, the date
Defendants contend they were on notice that the
amount in controversy exceeds $75,000. (Id. at 2).
Shipley also asserts that assuming that Helping
Hands is a citizen of Mississippi and Georgia,
diversity jurisdiction is still lacking because
Defendant Beaugez is a citizen of Alabama
notwithstanding her representations to the Court.
Shipley avers that Beaugez has an Alabama driver’s
license, appears to own a car with a current Alabama
registration, is registered to vote and has voted in
Alabama, and in July 2017 and July 2018, she
received two traffic tickets in Alabama, and both
tickets reflect an Alabama home address. (Id. at 34).
Defendant Beaugez filed a response in opposition
to Plaintiff’s response. (Doc. 31). In her response,
Beaugez argues that the removal was timely and
that at the time the lawsuit was filed in October
2017, she physically resided in Mississippi and had
the intent to remain there. (Id.) Helping Hands also
filed a response to Shipley’s reply (Doc. 30). Helping
Hands argues that the removal was timely and that
17a
Beaugez was a citizen of Mississippi at the time the
Complaint was filed. (Doc. 30). Following the
evidentiary hearing on March 6, 2019, the parties
filed supplemental briefs, at the Court’s directive, on
the issue of whether the removal was timely filed.
(Docs. 37, 38). Shipley asserts that Defendants’
removal was untimely, while Defendants allege that
the removal was timely filed and that Shipley waived
the timeliness issue by not raising it in her motion to
remand. On June 19, 2019, the Magistrate Judge
issued a Report and Recommendation recommending
that Plaintiff’s motion be denied. (Doc. 41). Plaintiff
filed the instant objection on July 2, 2019. (Doc. 42).
STANDARD OF REVIEW
A removing defendant has the burden of proving
proper federal jurisdiction. See Adventure Outdoors,
Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir.
2008);
Friedman v. New York Life Ins. Co., 410 F.3d
1350, 1353 (11th Cir. 2005) (“In removal cases, the
burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.”)
(citation and internal brackets omitted); McCormick
v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)
(noting that “the party invoking the court’s
jurisdiction bears the burden of proving, by a
preponderance of the evidence, facts supporting the
existence of federal jurisdiction.”); Pacheco de Perez
v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)
(“In a motion to remand, the removing party bears
the burden of showing the existence of federal
jurisdiction.”). Because removal infringes upon state
sovereignty and implicates central concepts of
18a
federalism, removal statutes must be construed
narrowly, with all doubts resolved in favor of
remand. See University of S. Ala. v. American
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994). Furthermore, “once a federal court
determines that it is without subject matter
jurisdiction, the court is powerless to continue.”
Underwriters at Lloyd’s, London v. Osting-Schwinn,
613 F.3d 1079, 1092 (11th Cir. 2010) (citation and
internal brackets omitted).
“Eleventh Circuit precedent permits district
courts to make reasonable deductions, reasonable
inferences, or other reasonable extrapolations from
the pleadings to determine whether it is facially
apparent that a case is removable.” SUA Ins. Co. v.
Classic Home Builders, LLC, 751 F. Supp. 2d 1245,
1252 (S.D. Ala. 2010) (quoting Roe v. Michelin North
America, Inc., 613 F.3d 1058, 1061-62 (11th Cir.
2010)). Courts may use judicial experience and
common sense to determine whether the case stated
in the complaint meets the requirements for federal
jurisdiction.
Id. Reliance on “speculation” is
“impermissible.” Id. (citing Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010)).
DISCUSSION
Plaintiff
objects
to
the
Report
and
Recommendation (“R&R”) of the Magistrate Judge on
multiple grounds. The undersigned has reviewed
each of those grounds and finds them to be
unconvincing, save for one: the issue of whether
Plaintiff timely raised the untimeliness of
19a
Defendants’3 Notice of Removal.4 On that issue, the
Magistrate Judge found that Plaintiff had waived
her argument that Defendants’ removal was
untimely because she failed to raise the same in her
initial motion to remand, and instead, only raised
the issue in her reply to Defendants’ opposition to
her motion to remand.5 In so finding, the Magistrate
Judge discussed that courts are split over the issue of
whether the timely filing of a motion to remand
alleging a procedural defect is sufficient to preserve
another procedural objection under §1447(c). (Doc.
41 at 19). After considering the relevant decisions on
the issue from the Ninth and Fifth Circuits, the
Magistrate Judge found the reasoning of the Ninth
Circuit to be applicable. Specifically, the decision of
the Ninth Circuit in Northern California Dist.
Council of Laborers v. Pittsburgh-Des Moines Steel
Co., 69 F.3d 1034 (9th Cir. 1995), wherein the court
The Notice of Removal was filed by Helping Hands with
Defendant Beaugez filing a Notice of Joinder the same day.
(Docs. 1 and 3). However, because both Defendants oppose the
motion to remand and have presented overlapping positions as
to the same, the undersigned will simply refer to them
collectively as “Defendants”.
3
Of note, Plaintiff’s Objection correctly states that the
citizenship of Beaugez should have been analyzed based on the
date of removal, not based on the date of the filing of the
Complaint. (Doc. 42 at 13-15). Nevertheless, the undersigns
finds that the result would be the same if Beaugez’s citizenship
were determined based on the date of the removal. As such, no
further discussion of Beaugez’s citizenship is warranted.
4
There is no dispute that Plaintiff did not raise timeliness
until December 4, 2018, more than thirty days after Defendants
filed a notice of removal.
5
20a
held that where the plaintiff’s remand motion was
filed within thirty days, but no defect in the removal
procedure was ever raised until a reply brief filed
more the thirty days after the removal petition, the
plaintiff had waived any procedural objections. (Doc.
41 at 19-20). The R&R also recognized that several
courts within this circuit have followed the reasoning
of the Ninth Circuit. (See Doc. 41 at 22) (citing
Clark v. USAA Cas. Ins. Co., 2015 WL 7272305, *2
(M.D. Fla. Nov. 18, 2015); Robinson v. Affirmative
Ins. Holdings, Inc., 2013 WL 838285, *2 (N.D. Ala.
March 1, 2013); accord Harris v. JLG Indus., 2016
WL 325132, (S.D. Ala. Jan. 27, 2016)6.
A. WAIVER
In her Objection, Plaintiff urges this Court not to
follow the Ninth Circuit’s decision in Pittsburgh-Des
Moines Steel, relied on by the Magistrate Judge and
instead, to adopt the reasoning of the Fifth Circuit in
BEPCO, L.P. v. Santa Fe Minerlas, Inc., 675 F.3d
466 (5th Cir 2012). In support of her position,
Plaintiff points to dicta from a not-on-point Eleventh
Circuit decision in Velchez v. Carnival Corp., 331
F.3d 1207, (11th Cir. 2003), which she asserts
parallels the Fifth Circuit’s
reasoning in
6
The undersigned recognizes that the R&R in Harris, which
was adopted by this Court, contained an analysis as to waiver
that is almost identical to the analysis in the R&R in this
action. However, in that action, as in this one, before the filing
of Plaintiff’s objection, the Court was not presented with the
argument Plaintiff has now presented based on Velchez, which
the undersigned finds compelling.
21a
Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280
(5th Cir. 2004), and led to BEPCO. (Doc. 42 at 2-9)
In Velchez, a plaintiff sought remand of his action
against Carnival Cruise Line for failure of Carnival
to attach a copy of all process, pleadings, and orders
served, to the removal as required by § 1446(a).
Velchez, 331 F.3d at 1208-09.
The case was
remanded, not for failure to attach the requisite
documents, but for untimeliness.
Id. Carnival
sought to appeal the remand order despite the fact
that a remand order is unreviewable by claiming
that the district court went outside of its authority
because it granted remand on a procedural defect not
raised by Plaintiff, i.e. timeliness. Id. at 1209-10.
Thus, Carnival urged that the remand was ordered
sua sponte and should be reviewable because it was
improper. Id. The Eleventh Circuit denied the
appeal after determining that the remand order was
not sua sponte because the Plaintiff had timely filed
a motion to remand which made known the
plaintiff’s lack of desire to acquiesce to federal forum.
Id.
Similar to the Eleventh Circuit’s conclusion in
Velchez, in Schexnayder, the Fifth Circuit held that a
Court could remand an action based on a procedural
defect not raised by a Plaintiff in a timely motion to
remand. Later, in BEPCO, the Fifth Circuit rejected
“any suggestion that the timing of the presentation
of a removal defect -- rather than the submission of
the remand motion -- is what matters for a
timeliness analysis under § 1447(c).” Id. at 471. As
such, in BEPCO, the court found that a motion to
remand could be granted based on a procedural
defect that was raised by a plaintiff, even if that
22a
defect was not raised in the initial timely motion to
remand. Id. As a result, Plaintiff contends that the
Eleventh Circuit’s decision in Velchez supports the
ultimate conclusion reached by the Fifth Circuit in
BEPCO, i.e. that a plaintiff does not waive a
procedural defect by failing to raise that issue in her
initial timely motion to remand.
Plaintiff additionally argues that following the
Ninth Circuit’s position on waiver, i.e. that a
procedural defect not raised in an otherwise timely
motion to remand is waived, while simultaneously
following the rationale of the Eleventh Circuit in
Velchez would create a rule “stating that a timeliness
argument is waived if first asserted more than thirty
(30) days after removal but is not waived if never
asserted.” (Doc. 42 at 4). Plaintiff goes on to cite
other decisions within this circuit that have granted
remand based on a procedural defect that was not
raised by a plaintiff in her initial motion to remand.
See LaTasha Card v. Safeco Ins. Co. of Illinois, 2016
WL 9114002, *1 (N.D. Fla. Feb. 1, 2016); Deweese v.
Doran, 2015 WL 5772156.
At *1 (M.D. Fla.
September 30, 2015); Axis Underwriters, Inc. v. Arch
Specialty Ins. Co., Axis Underwriters, Inc. v. Arch
Specialty Ins. Co., 2008 WL 11406185 (S.D. Fla. Feb.
28, 2008) (S.D. Fla. Feb. 28, 2008).
This Court finds Plaintiff’s arguments compelling
and agrees that the rationale behind Velchez can
logically be read to support the position that a
Plaintiff does not waive a procedural defect by failing
to raise that issue in an otherwise timely motion to
remand. Certainly, if the Eleventh Circuit found the
district court in Velchez to be within the confines of
its statutory power when it remanded an action on
23a
grounds that were not raised by Plaintiff at all
because such a remand was not sua sponte, then the
same rationale would support that a case could be
remanded when a Plaintiff timely filed a motion to
remand, even if the motion did not raise the issue on
which a plaintiff later argues remand is warranted.
Accordingly, the undersigned finds that the rationale
of Velchez and the reasoning of the Fifth Circuit and
the courts within this circuit that have followed
Velchez and BEPCO, to be persuasive. Such a
conclusion, however, only incites the question of
whether or not Defendants timely removed this
action, an issue not addressed by the Report and
Recommendation.
B. TIMELINESS
Plaintiff is adamant that Defendants removal was
untimely because absolutely nothing changed
between the date on which Plaintiff filed her
Complaint, and October 1, 2018, the date on which
Defendants contend this case became removeable by
“other paper” pursuant to 1446(b). (Doc. 21 at 2;
Doc. 37 and 42, generally). Plaintiff alternatively
argues that even if the amount in controversy was
not facially apparent from the Complaint, the case
became removable on May 24, 2018, the date on
which
Plaintiff
responded
to
Defendant’s
Interrogatories and Request for Production, or, at the
very latest, on August 31, 2018, when Plaintiff
responded to Defendants’ Requests for Admissions.
(Doc. 42).
28 U.S.C. § 1446(b) makes removal proper in two
instances. In the first instance, which is delineated
in section 1446(b)(1) (formerly referred to as “first
24a
paragraph removal”), the 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.”
Robinson, at *2. In the second instance, a case may
be removed under section 1446(b)(3) (formerly
referred to as “second paragraph removal”) if 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.” Id.
28 U.S.C. § 1446(b)(3) imposes the following
thirty-day limitation on the removal of diversity
cases:
(3) [...] [I]f the case stated by the initial pleading
is not removable, a notice of removal may be filed
within thirty 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). Pursuant to § 1446(b)(3), the
renewed removal window opens, but only for thirty
days, when the defendant receives a document “from
which it may first be ascertained that the case is one
which is or has become removable.” 28 U.S.C.
§ 1446(b) (second paragraph). The Fifth Circuit has
explained that “[a]scertain” means “to make certain,
exact, or precise” or “to find out or learn with
certainty.” Bosky v. Kroger Tex., LP, 288 F.3d 208,
211 (5th Cir. 2002) (footnotes omitted). The “receipt
from the plaintiff” rule in the second paragraph of
25a
§ 1446(b), applies if “the case stated by the initial
pleading is not removable” but the case “has become
removable” due to changed circumstances. See 28
U.S.C. § 1446(b) (second paragraph). The traditional
rule is that only a voluntary act by the plaintiff may
convert a non-removable case into a removable one.
See Insinga v. LaBella, 845 F.2d 249, 252 (11th Cir.
1988) (explaining the judicially created “voluntaryinvoluntary” rule that applies in diversity cases); see
also Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547
(5th Cir. 1967). As such, removal under § 1446(b)
requires three elements, “there must be (1) ‘an
amended pleading, motion, order or other paper,’
which (2) the defendant must have received from the
plaintiff (or from the court, if the document is an
order) and from which (3) the defendant can ‘first
ascertain’ that federal jurisdiction exists.” Lowery v.
Alabama Power Company, 483 F.3d at 1213 n.63
(11th Cir. 2007). “Thus, a defendant cannot show
that a previously non-removable case ‘has become
removable’ as a result of a document created by the
defendant.” Pretka v. Kolter City Plaza II, Inc., 608
F.3d 744, 761 (11th Cir. 2010).
1. The Complaint
Plaintiff first asserts that Defendants’ removal is
untimely pursuant to §1446(b)(1) because it was filed
more than thirty days after the service of the initial
Complaint. This Court finds Plaintiff’s assertion to
be disingenuous. As repeatedly pointed out by
Defendants, Plaintiff’s Complaint made no mention
of the amount of claimed damages that Plaintiff
sought and only broadly described Plaintiff’s injuries
and damages, which may or may not have stated a
26a
viable claim for punitive damages. (Doc. 1-1 at 3-5).
Specifically, Plaintiff alleged only that she had a
previous knee surgery that was allegedly ruined
which caused her to be unable to walk for two weeks,
caused daily pain for which she took medications,
and required her to use a wheel chair or electronic
cart when shopping. Id. It is further undisputed
that at the time the Complaint was filed, Defendants
were unaware of any actual damages incurred by
Plaintiff. As a result, at the time of the filing of the
Complaint, it was not facially apparent that the
jurisdictional requirement for removal was satisfied.
Furthermore,
notwithstanding
the
lack
of
information available to Defendants as of the time of
the filing of the Complaint, this Court also now has
the benefit of hindsight. The fact that Plaintiff –
after filing her Complaint which she now contends
was facially obvious as to the amount in controversy
– still failed to provide information as to her actual
and potential damages to Defendants in response to
discovery and has now argued on multiple occasions
that she was unable to clearly determine the value of
her case in August 2018, is telling. Plaintiff cannot
have it both ways.
Either Plaintiff provided
Defendants with the information from which they
could ascertain the amount of damages in the
Complaint or at the time of filing the Complaint, and
for months thereafter, Plaintiff herself could not
determine such information. To find otherwise is not
reasonable. In fact, this double-edged position is
additionally highlighted by Plaintiff’s continued
insistence, even in her objection to the Report and
Recommendation, that the amount in controversy
has not been established. (See Doc. 42 at 13)
27a
(“Despite the Magistrate Court’s finding that Ms.
Shipley’s claims meet the $75,000 threshold by a
preponderance of the evidence [citation omitted], Ms.
Shipley has never asserted an amount in controversy
in any of her pleadings, responses to interrogatories,
or answers to requests for admission [...as] more
discovery is needed to give an unequivocal response
to the question of amount in controversy.”) Plaintiff
would have this Court find that Defendants acted
untimely in removing this case based on the
Compliant, while at the same time allowing Plaintiff
to dodge the amount in controversy question to serve
as a basis of her remand. This Court is not inclined
to oblige.
2. Plaintiff’s Written
Discovery Responses
Plaintiff next argues that the amount in
controversy became ascertainable pursuant to
§1446(b)(3) on May 24, 2018, the date on which she
responded to Defendants’ Interrogatories and
Request for Production. (Doc. 42 at 10). However,
Plaintiff offers nothing to suggest that she provided
Defendants with information or documentation on
that date by which her damages could be
ascertained. Rather, Plaintiff’s discovery responses
only echoed the allegations of her Complaint but for
the update that she had undergone a second surgery
(the first attributed to this action).
Moreover,
Defendants have pointed out that according to
Plaintiff’s discovery responses, she had total medical
bills of $373.30. (Doc. 38 at 1). Even considering the
general allegations relating to damages asserted by
Plaintiff at that time, there lacked clear and
28a
convincing evidence that the monetary requirement
for removal had been met. Accordingly, this Court is
not satisfied that Defendants’ time to remove this
action began to run when Plaintiff responded to
written discovery on May 24, 2018.
3. Plaintiff’s Responses to
Requests for Admission
Finally, Plaintiff asserts “even if this Court
agrees that the case was not removable until
Plaintiff responded to Helping Hands’ Request for
Admissions on August 31, 2018, stating that she was
unable to admit or deny that the amount in
controversy exceeded $75,000, Helping Hands still
waited 42 days to remove. (Doc. 42 at 10). 7 In
Plaintiff simultaneously argues that this Court should not
allow her responses to the RFA to essentially result in an
admission of the requests, thereby satisfying the jurisdictional
requirement. However, this Court does not find that Plaintiff’s
responses to the RFA independently established the amount in
controversy. See Jackson v. Litton Loan Servicing, LP, 2010
WL 3168117, *5 (M.D. Ala. August 10, 2010) “([A] refusal to
stipulate to an amount in controversy in response to an
interrogatory does not result in an admission regarding the
amount in controversy.”) citing to Harmon v. Wal–Mart Stores,
Inc., 2009 WL 707403 at *4 (M.D. Ala. 2009) (“Defendant
cannot create an end-run around the jurisdictional
requirements by forcing a denial of a negative and then claim
the positive is admitted and conclusively determined.”). Rather,
this Court finds that that Plaintiff’s refusal to limit her
damages in response to the RFA was “other paper” which
triggered the time to remove and that her refusal coupled with
the other factors discussed herein above in her notice of
removal satisfied the jurisdictional requirement by clear and
convincing evidence.
7
29a
response to Defendants’ Requests for Admissions,
Plaintiff provided the following answers to
Defendants:
RFA No. 1: Admit or deny that you will never
seek to recover more than $75,000.00, exclusive of
interest and costs.
RESPONSE: The Plaintiff is unable to admit or
deny this request at this time.
RFA No. 2: Admit or deny that you will never
accept any award greater than $75,000.00,
exclusive of interest and costs.
RESPONSE: The Plaintiff is unable to admit or
deny this request at this time.
RFA No. 3: Admit or deny that the total damages
in this case do not exceed $75,000.00, exclusive of
interest and costs.
RESPONSE: The Plaintiff is unable to admit or
deny this request at this time.
(Doc. 1-1 at 162; Doc. 30 at 7-8). It is undisputed
that upon receipt of the above responses, Plaintiff
was promptly asked by Defendants to supplement
the same within seven days or on or before
September 11, 2018. (Doc. 38 at 2). Plaintiff failed
to do so. As a result, Defendants filed a motion to
compel. (Id.). The state court set the motion for a
hearing on November 5, 2018, a date beyond the oneyear time limit to remove this civil action pursuant
30a
to 28 U.S.C §1446(c)(1) 8 Defendants then sought
Plaintiff’s approval to move the hearing to a date
prior to the expiration of the one-year removal
deadline and Plaintiff refused.
Accordingly,
Defendants argue that Plaintiff’s refusal on October
1, 2018, to supplement her responses to Defendants
RFA, was the event that triggered the thirty-day
removal timeline. (Doc. 1 at 7; Doc. 38). As a result,
they argue their removal on October 11, 2018, was
timely.
For the reasons set forth in the Magistrate
Judge’s R&R, this Court finds that Defendants’
notice of removal satisfied the amount in controversy
requirement based on Plaintiff’s Complaint, her
responses to Defendants’ written discovery and her
responses to the RFA. The pertinent question, then,
is on what date did the relevant facts become
ascertainable to Defendants by means of “other
paper” pursuant to § 1446(b).
In Lowery, the
Eleventh Circuit listed “numerous types of
documents [that] have been held to qualify. They
include: responses to requests for admissions,
settlement offers, interrogatory responses, deposition
testimony, demand letters, and email estimating
damages. Lowry, F.3d at 1212 n. 62. (internal
citations omitted).
According to Defendants, the “other paper”
provision of §1446(b) is satisfied by the state court’s
“A case may not be removed under subsection (b)(3) on the
basis of jurisdiction conferred by section 1332 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)
8
31a
order of September 18, 2018, setting the motion to
compel for a hearing. (Doc. 38 at FN 2). However,
the order of the state court setting the motion to
compel, does nothing in the way of allowing
Defendants to ascertain Plaintiff’s damages. In fact,
Defendants’ action in removing when they did (prior
to supplementation, a hearing, or an Order on the
motion to compel), suggests that it was the answers
to the RFA which actually prompted support for the
removal, not the order setting the motion to compel
for a hearing. In this action, the record does not
contain any paper document created by Plaintiff and
provided to Defendants on October 1, 2018 which
would trigger the thirty-day time to remove this
action. Specifically, Plaintiff’s refusal to supplement
her answers to the RFA on October 1, 2018, is not
“other paper” and did not provide Defendants with
any additional information than they had on August
31, 2018, when Plaintiff answered the RFA stating
she was without sufficient information so as to
answer.
The motion to compel, created by
Defendants, likewise, cannot constitute “other
paper”. Finally, Plaintiff’s refusal to consent to
rescheduling the hearing on the motion to compel
does not qualify as “other paper”. As a result, this
Court is left with a situation in which Plaintiff has
been less than forthcoming about her damages preremoval, while arguing post-removal that the
damages threshold had clearly been met since the
Complaint was filed.
Reason suggests that to
remand this action would be unfair. 9 However,
This Court appreciates Defendants’ argument that Plaintiff’s
conduct warrants a denial of her motion to remand. (Doc. 38 at
6-8). However, those cases cited by Defendant in which remand
9
32a
timeliness under § 1446(b) hinges on the date in
which defendant received “other paper” from which it
could ascertain the case had become removable. See
§ 1446(b). Considering the totality of circumstances,
as set forth in the notice of removal, this action
became removable on August 31, 2018. On that date,
Defendants were aware of Plaintiff’s assertions in
her Complaint, coupled with her discovery responses,
including her assertion that she underwent a second
surgery, and finally, (and importantly), her
responses to the RFA, in which she refused to limit
her damages. These are the same set of facts on
which the Magistrate Judge concluded the
jurisdictional monetary requirement was apparent. 10
As a result, despite this Court condemning Plaintiff’s
actions, the time for removal commenced on August
31, 2018, and closed on September 30, 2018. As
such, Defendants’ removal on October 11, 2018 was
untimely.
was denied, do not establish that the conduct warranted
remand, rather than whether the underlying jurisdictional
requirements were met despite a plaintiff’s conduct. See
Logsdon v. Duron, Inc., 2005 WL 1163095, (M.D. Fla. May 17,
2005); see also Nowlin v. National Linen Svcs., 1997 WL 715035
(N.D. Fla. Oct. 7, 1997). Similarly, this Court does not find that
Plaintiff’s conduct warrants a denial of Plaintiff’s Motion to
Remand.
10 This Court is not of the opinion that any one of these events,
when considered separately, would have been sufficient
evidence to support removal.
Rather, removal was
ascertainable only when these events were considered together,
which became possible on the date of the latest action by
Plaintiff, August 31, 2018.
33a
CONCLUSION
For the reasons stated hereon above, Plaintiff’s
Motion to Remand is GRANTED and this action is
REMANDED to the Circuit Court of Hale County,
Alabama.
DONE and ORDERED this 26th day of August,
2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES
DISTRICT JUDGE
34a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
ALABAMA NORTHERN DIVISION
BETTY R. SHIPLEY,
*
*
Plaintiff, *
vs.
*
* CIVIL ACTION
NO. 18-437-CG-B
HELPING HANDS
*
THERAPY,
et al.,
*
*
Defendants. *
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff Bettye
R. Shipley’s Motion to Remand (Doc. 10). The
motion, which has been fully briefed, has been
referred to the undersigned Magistrate Judge for
entry of a Report and Recommendation pursuant to
28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR
72(a)(2)(S). The Court conducted an evidentiary
hearing on March 6, 2019.
(Doc. 35).
Upon
consideration of the parties’ briefs and the testimony
and materials submitted at the evidentiary hearing,
the undersigned RECOMMENDS that Plaintiff’s
Motion to Remand be DENIED.
I. Factual and Procedural Posture.
Plaintiff, Bettye R. Shipley (“Shipley” or
“Plaintiff”), commenced this action on October 12,
35a
2017, in the Circuit Court of Hale County, Alabama.
(Doc. 1-1 at 3). In her complaint, Shipley names as
Defendants Helping Hands Therapy/Greensboro
Out-Patient Clinic and Sarah Beaugez, PT. (Id.).
Shipley asserts that she had a left knee replacement
and underwent prescribed physical therapy with
Helping Hands Therapy, located in Greensboro,
Alabama, to regain strength and range of motion in
her left knee. Shipley contends that, on September
8, 2016, Defendant Sarah Beaugez, a physical
therapist with Helping Hands Therapy, forced her
leg to bend to fourteen degrees beyond her tolerance,
and in so doing, caused her left knee replacement to
fail. (Id. at 3-4). Shipley contends that she was
unable to walk or do anything for two weeks, that
she is unable to walk properly and needs another
surgery, that she is in constant pain and requires
daily pain medication, and that she must use a wheel
chair and a riding buggy in order to get around
places such as the grocery store. (Id.). Shipley
asserts that Beaugez acted negligently and with
wantonness, and seeks compensatory and punitive
damages. (Id.)
On October 11, 2018, New Hope LLC d/b/a
Helping Hands Therapy/Greensboro Out-patient
Clinic filed a Notice of Removal. (Doc. 1). On the
same date, Defendant Beaugez filed a notice of
consent and joinder in the removal.
(Doc. 3).
Defendants assert the existence of complete diversity
because Shipley is a resident of Alabama; New Hope
LLC is a Mississippi corporation, with its principal
place of business in Meridian, Mississippi, and its
three members are Jia Liu, Roshanda Lankford, and
Bailing Wang, residents of Georgia, Mississippi, and
36a
Georgia respectively. 1 (Doc. 1-2).
Defendants
further contend that Defendant Beaugez was a
resident of Mississippi at the time the lawsuit was
filed in October 2017 and that she had an intent to
remain there at that time. (Doc. 1 at 3).
With respect to the amount in controversy,
Defendants contend that on May 24, 2018, in
response to Helping Hands’ interrogatories, Shipley
claimed to be housebound for most of the time since
her injury on September 8, 2016, and that she now
requires the use of a cane and has slept in a recliner
for over two to three years. She also indicated that
she had to have another surgery in January 2018
and that she had filed a claim for disability due to
the injuries she sustained as a result of Beaugez’s
actions. (Doc. 1-1 at 151, Plaintiff’s Interrogatory
Responses, Nos. 10, 11, and 14).
Defendants assert that subsequent thereto,
Helping Hands issued Requests for Admissions to
Shipley requesting that she admit or deny that that
her damages exceed $75,000 and that she would
accept more than $75,000. (Doc. 1, Doc. 1-1 at 16162). Shipley responded that she was unable to admit
or deny the admission requests, and in response
thereto, Defendants requested that she amend her
discovery responses. (Id.). When Shipley refused to
do so, Helping Hands filed a motion to compel in
state court and requested an order directing Shipley
to supplement her responses by October 1, 2018. (Id.
at 6). The state court scheduled the matter for a
Defendants later clarified that Liu, Lankford, and Wang are
citizens of Georgia, Mississippi, and Georgia respectively. (Doc.
18-1 at 3).
1
37a
hearing on November 5, 2018, which was more than
one year after Shipley had filed her complaint in
state court. Defendants requested that the hearing
date be moved up, but Shipley refused. (Id. at 10).
Defendants contend that this case became
removable on October 1, 2018, when Shipley refused
to respond to Defendants’ requests regarding
damages with full knowledge that the one-year
limitation for removal was approaching. (Doc. 1-1 at
10).
Defendants further assert that Plaintiff’s
refusal to limit her damages and refusal to agree to
moving up the hearing date for the summary
judgment motion shows an intent to dodge
jurisdictional inquiries in an effort to defeat removal
jurisdiction. (Id.). According to Defendants, those
refusals, coupled with the injuries claimed and
damages sought in Shipley’s complaint and
interrogatory responses provided Defendants with
the evidence necessary to ascertain that Plaintiff was
seeking more than $75,000 and unambiguously
establishes that the amount in controversy exceeds
$75,000. Defendants thus argue that the case was
timely removed. (Id.)
Shipley filed her motion to remand on November
8, 2018. (Doc. 10). In her motion to remand, Shipley
argues that a record from the Alabama Secretary of
State clearly shows that Helping Hands Therapy is
an Alabama limited liability company incorporated
in Alabama; thus, there is no diversity jurisdiction.
(Doc. 10 at 4). Shipley further asserts that even if
Helping Hands Therapy is a trade name for a
Mississippi business, at the time the lawsuit was
filed, its principal place of business was Alabama
under the “nerve center test” given that all three of
38a
its clinics are located in Alabama. (Id. at 5). Shipley
contends that Meridian, Mississippi cannot possibly
be Helping Hands’ “nerve center” because there is no
corporate activity occurring there, as all of its clinics
are located in Alabama. (Id.)
With respect to the amount in controversy,
Shipley asserts that she “does not intend to waive an
argument that the amount in controversy is less
than $75,000” and “that the issue is moot without
complete diversity.”
(Id. at 7).
Plaintiff also
contends that contrary to Defendants’ assertion, she
refused to move up the hearing date in state court
because the motion to compel was “obviously
frivolous,” and Defendants’ only goal was to try to
establish diversity jurisdiction. (Id. at 8).
In Defendant Beaugez’s response in opposition to
Shipley’s motion to remand (Doc. 16), Beaugez
asserts that the sole basis for Shipley’s motion is her
contention that Helping Hands is a citizen of
Alabama. Beaugez notes that Shipley made no
argument contesting the amount in controversy and
offered no evidence to rebut Helping Hands’ showing
that the amount in controversy is satisfied. (Id.).
Defendant Helping Hands also filed a response in
opposition to Shipley’s motion. (Doc. 14). Helping
Hands argues that Shipley’s motion actually bolsters
Defendants’ contention that the amount in
controversy exceeds $75,000. (Doc. 18). According to
Helping Hands, Shipley has indicated that she is
seeking compensatory and punitive damages for
significant physical harm, increased medical costs,
pain, suffering and other damages, that she cannot
walk properly and is in constant pain and that she
takes pain medication daily and uses a wheelchair
39a
and riding buggy at places such as the grocery store.
Helping Hands asserts that such evidence is
sufficient to establish that the amount in controversy
exceeds $75,000. (Id. at 7).
With respect to diversity, Helping Hands
contends that contrary to Shipley’s assertions, for
diversity purposes, a limited liability company,
unlike a corporation, is a citizen of any state of which
a member of the company is a citizen, and it matters
not where the company was formed or has its
principal place of business. (Id. at 6). Helping
Hands further contends that the uncontroverted
evidence establishes that Helping Hands Therapy,
LLC was not formed until March 2018 and that the
allegations in Plaintiff’s complaint relate to services
provided at a clinic operated by New Hope, LLC,
which was doing business under the trade name
Helping Hands Therapy. (Id. at 5). Additionally,
Defendant asserts that at the time this lawsuit was
filed, and at the time of removal, New Hope, LLC
d/b/a Helping Hands Therapy, had three members,
namely Jia Liu, Roshonda Lankford, and Bailey
Wang, who were citizens of Georgia, Mississippi, and
Georgia respectively. (Id. at 6). Helping Hands also
asserts that it has demonstrated, and Shipley has
not contested, that she is a citizen of Alabama, and
Sarah Beaugez is a citizen of Mississippi. Thus,
diversity of citizenship has been established. (Id.).
On December 4, 2018, Shipley filed her reply to
Defendants’ response in opposition to her motion to
remand (Doc. 21). In her reply, Shipley argues that
the removal was untimely. (Id. at 1). According to
Shipley, while Defendants contend that they did not
know that the amount in controversy exceeded
40a
$75,000 until October 1, 2008, her factual allegations
did not change between the filing of her complaint on
October 11, 2017, and October 1, 2018, the date
Defendants contend they were on notice that the
amount in controversy exceeds $75,000. (Id. at 2).
Shipley also asserts that assuming that Helping
Hands is a citizen of Mississippi and Georgia,
diversity jurisdiction is still lacking because
Defendant Beaugez is a citizen of Alabama
notwithstanding her representations to the Court.
Shipley avers that Beaugez has an Alabama driver’s
license, appears to own a car with a current Alabama
registration, is registered to vote and has voted in
Alabama, and in July 2017 and July 2018, she
received two traffic tickets in Alabama, and both
tickets reflect an Alabama home address. (Id. at 34).
Defendant Beaugez filed a response in opposition
to Plaintiff’s response. (Doc. 31). In her response,
Beaugez argues that the removal was timely and
that at the time the lawsuit was filed in October
2017, she physically resided in Mississippi and had
the intent to remain there. (Id.) Helping Hands also
filed a response to Shipley’s reply (Doc. 30). Helping
Hands argues that the removal was timely and that
Beaugez was a citizen of Mississippi at the time the
Complaint was filed. (Doc. 30). Following the
evidentiary hearing on March 6, 2019, the parties
filed supplemental briefs, at the Court’s directive, on
the issue of whether the removal was timely filed.
(Docs. 37, 38). Shipley asserts that Defendants’
removal was untimely, while Defendants allege that
the removal was timely filed and that Shipley waived
41a
the timeliness issue by not raising it in her motion to
remand.
II. DISCUSSION.
A. Standard of Review
A removing defendant has the burden of proving
proper federal jurisdiction. See Adventure Outdoors,
Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir.
2008); Friedman v. New York Life Ins. Co., 410 F.3d
1350, 1353 (11th Cir. 2005) (“In removal cases, the
burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.”)
(citation and internal brackets omitted); McCormick
v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)
(noting that “the party invoking the court’s
jurisdiction bears the burden of proving, by a
preponderance of the evidence, facts supporting the
existence of federal jurisdiction.”); Pacheco de Perez
v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)
(“In a motion to remand, the removing party bears
the burden of showing the existence of federal
jurisdiction.”). Because removal infringes upon state
sovereignty and implicates central concepts of
federalism, removal statutes must be construed
narrowly, with all doubts resolved in favor of
remand. See University of S. Ala. v. American
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994). Furthermore, “once a federal court
determines that it is without subject matter
jurisdiction, the court is powerless to continue.”
Underwriters at Lloyd’s, London v. Osting-Schwinn,
42a
613 F.3d 1079, 1092 (11th Cir. 2010) (citation and
internal brackets omitted).
“Eleventh Circuit precedent permits district
courts to make reasonable deductions, reasonable
inferences, or other reasonable extrapolations from
the pleadings to determine whether it is facially
apparent that a case is removable.” SUA Ins. Co. v.
Classic Home Builders, LLC, 751 F. Supp. 2d 1245,
1252 (S.D. Ala. 2010) (quoting Roe v. Michelin North
America, Inc., 613 F.3d 1058, 1061-62 (11th Cir.
2010)). Courts may use judicial experience and
common sense to determine whether the case stated
in the complaint meets the requirements for federal
jurisdiction.
Id. Reliance on “speculation” is
“impermissible.” Id. (citing Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010)).
B. Amount In Controversy
As a preliminary matter, the undersigned
observes that while Shipley has contested the
existence of complete diversity of citizenship, she has
not argued or sought to dispute Defendants’ showing
that the amount in controversy exceeds $75,000. In
her complaint, Shipley asserts a medical malpractice
claim against Defendants based on physical therapy
services that Defendant Beaugez provided Shipley
following a left knee replacement. As noted, supra,
Shipley contends that her knee replacement was
ruined, that she was unable to walk for two weeks,
that she is in constant, excruciating pain which
requires daily pain medication, that she is unable to
walk properly, and that she requires a wheelchair
and a riding buggy when she is out. Shipley further
43a
alleges that Beaugez acted negligently and wantonly,
and she seeks punitive and compensatory damages.
Additionally, in her discovery responses, Shipley
alleges that she had to have another knee surgery in
January 2018 due to Beaugez’s actions, that she has
been homebound most of the time, and that she has
to use a cane and sleep in a recliner. (Doc. 1-1 at
151). The undersigned finds that while Shipley did
not include a specific dollar amount in her complaint
and refused in her admissions request to admit or
deny that the damages in her case exceeded $75,000,
her assertions regarding the extent of her injuries
suffice to establish by a preponderance of the
evidence that, at the time of removal on October 11,
2018, the amount in controversy exceeded the
jurisdictional amount. Thompson v. Ortensie, 2017
U.S. Dist. LEXIS 174959, 2017 WL 4772741 (S.D.
Ala. Oct. 23, 2017) (“Courts may use judicial
experience and common sense in determining
whether the minimum amount in controversy is
satisfied.”)
C. Citizenship of the Defendants
The Court’s next inquiry is whether complete
diversity exists. As note, supra, Shipley initially
argued in her motion to remand that this case was
improperly removed because Defendant Helping
Hands Therapy was incorporated in Alabama, and
all of its “nerve centers” are located in Alabama. In
response, Defendants offered unrebutted evidence
that Helping Hands Therapy, LLC, was not
incorporated until March 2018 and that Shipley was
treated on September 2016 by New Hope, LLC, d/b/a
Helping Hand Therapy, and its employee Sarah
44a
Beaugez, PT. Defendants also presented sworn
testimony that the members of New Hope, LLC, are
Jia Liu, Roshonda Lankford, and Bailing Wang, and
that at the time this action was commenced, they
were citizens of Georgia, Mississippi, and Georgia
respectively. (Doc. 18-1)
The rule for diversity jurisdiction is “that the
citizenship of an artificial, unincorporated entity
generally depends on the citizenship of all the
members composing the organization.”
Rolling
Greens, MHP, L.P. v. Comcast SCH Holdings, L.L.C.,
374 F.3d 1020, 1021 (11th Cir. 2004) (per curiam)
(citing Carden v. Arkoma Assocs., 494 U.S. 185, 19596 (1990)); see also Americold Realty Trust v.
Conagra Foods, Inc., 136 S. Ct. 1012, 1016 (2016)
(“So long as . . . an entity is unincorporated, we
apply our ‘oft-repeated rule’ that it possesses the
citizenship of all its members.”
(reaffirming
Carden)). Accordingly, “to sufficiently allege the
citizenships of . . . unincorporated business entities,
a party must list the citizenships of all the members
of [those] entities.” Rolling Greens, 374 F.3d at 1022;
accord Mallory & Evans Contractors & Eng’rs, LLC
v. Tuskegee Univ., 663 F.3d 1304, 1305 (11th Cir.
2011). In this case, Shipley has made no effort to
rebut Defendants’ showing with respect to New
Hope, LLC. Instead, in its reply, Shipley questioned
the citizenship of Defendant Beaugez. Defendants
contend that Beaugez is a citizen of Mississippi,
while Shipley contends that Beaugez is a citizen of
Alabama.
Courts have held that, “[f]or diversity purposes, a
person is a citizen of the state in which he is
domiciled.” Slate v. Shell Oil Co., 444 F. Supp. 2d
45a
1210, 1214 (S.D. Ala. 2006). A person’s domicile is
“the place of ‘his true, fixed, and permanent home
and principal establishment, and to which he has the
intention of returning whenever he is absent
therefrom. . . .’” McCormick, 293 F.3d at 1257-58
(quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.
1974)). 2 This Court, in Slate, stated that the
determination of one’s domicile is a “totality of the
circumstances” analysis in which no single factor
carries greater weight than another. Slate, 444 F.
Supp. 2d at 1215. The Slate court included several
indicia that can be considered, including:
. . . the state(s) where civil and political rights are
exercised, where taxes are paid, where real and
personal property are located, where driver’s and
other licenses are obtained, where mail is
received,
where
telephone
numbers
are
maintained and listed, where bank accounts are
maintained, where places of business or
employment are located, and where memberships
in local professional, civil, religious or social
organizations are established.
Id.
Finally, a person may only have one domicile at a
time, and there is a presumption that, once a person
establishes their domicile, they are considered a
citizen thereof until they have effectively manifested
All Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981, are binding on the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209, (11th
Cir. 1981).
2
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a new one. Id. To establish that one’s domicile has
changed, two things must be proven: “(1) physical
presence at the new location, and (2) intent to
remain there indefinitely.” Id. at 1216; see also
McCormick, 293 F.3d at 1258 (noting that “a change
of domicile requires [a] concurrent showing of
(1) physical presence at the new location with (2) an
intention to remain there indefinitely.”).
At the evidentiary hearing, Defendant Beaugez
was the only witness called to testify. Beaugez
testified that she was born in Mississippi, reared in
Mississippi, attended school in Mississippi, and has
spent her entire life living in Mississippi except
limited periods during which she resided in Colorado
and Alabama. According to Beaugez, she relocated
from Mississippi to Alabama in September 2016
because she was in a romantic relationship with
someone residing in Demopolis, Alabama.
She
moved into that individual’s home, and on March 9,
2017, she obtained an Alabama’s Driver’s license and
registered to vote in Alabama. (Pls. ex. 2, 3). Both
documents bear the Demopolis, Alabama address.
Beaugez testified that the relationship soured,
and on September 7, 2017, she relocated to Lucedale,
Mississippi, with the intent to make Mississippi her
home. Beaugez further testified that she obtained
employment and rented a home in Lucedale,
Mississippi. Defendants offered a Direct TV order
form that reflects that Beaugez had cable service
installed at her Lucedale, Mississippi residence on
September 9, 2017, along with a pay stub from her
employer at the time, George Regional Health
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System dated October 12, 2017. 3 (Def.’s exs. 8, 9;
Doc. 35-1 at 77-78). The pay stub bears the same
Lucedale, Mississippi address as the Direct TV order
form. (Doc. 35-1 at 78). Additionally, Defendants
presented Beaugez’s Mississippi vehicle registration
which reflects that she registered her vehicle in
Mississippi on September 29, 2017. (Def. ex. 2; Doc.
35-1 at 2). These documents are consistent with
Beaugez’s testimony that, after her romantic
relationship soured in September 2017, she relocated
from Alabama to Mississippi on September 6, 2019,
with the intention of remaining in Mississippi.
Beaugez testified that in November 2017, she had
a change of heart and decided to return to Alabama
to give the relationship another try. As she had done
before, Beaugez relocated to Alabama and lived in
her romantic partner’s home in Demopolis, Alabama.
She ended the relationship a second (and allegedly
final) time in March, 2018, and relocated back to
Mississippi. Beaugez’s 2017 tax records reflect that
in July 2018, Alabama and Mississippi state tax
returns were filed on her behalf for the time periods
during which she worked in both states during 2017.
(Def.’s exs. 5, 6; Doc. 35-1 at 6-26). The tax returns
bear a Louisville, Mississippi address and are
consistent with Beaugez’s testimony that, after the
second attempt at her relationship failed, she
relocated back to Mississippi.
As noted, supra, the law in this Circuit provides
that once a person establishes a domicile, it
Defendants also presented a Hepatitis B Vaccine form (Def.
ex. 7) that reflects that Beaugez was administered he vaccine at
her workplace in Lucedale, Mississippi on September 19, 2019.
3
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continues until the person establishes a new
domicile. To effect a change of one’s legal domicile,
there must be a change in residence, and there must
be an intention to remain there. See McCormick, 293
F.3d at 1258. Based on the preponderance of the
evidence presented, including the straight forward
testimony of Beaugez, the undersigned finds that
Beaugez was domiciled in Mississippi, not Alabama,
when this lawsuit was filed on October 12, 2017, and
as a result, complete diversity of citizenship existed
at that time.4
At the hearing, Shipley submitted various documents to
establish that Beaugez was a citizen of Alabama when the
lawsuit was filed; however, the documents do not change the
outcome. For example, when Beaugez was issued a traffic
ticket in Marengo County, Alabama on July 14, 2017, she
presented an Alabama driver’s license that listed a Demopolis
address. (Plaintiff’s exs. 2, 5; Doc. 35 at 1-5). The document
does not conflict with Beaugez’s testimony that at the time, she
was residing in Alabama and had the intention to be here.
Further, the document reflecting that Beaugez was registered
and voted in Alabama during the December 2017 election does
not conflict with Beaugez’s testimony and supporting
documents that, for a near three month period, namely
September 2017 through some point in November 2017, she
returned to Mississippi following the breakup of her romantic
relationship, and was not only domiciled in Mississippi, but
intended to make it her home. At that point, she took a job in
Mississippi, rented a house in Mississippi, and had her utilities
turned on in Mississippi. It was only after Beaugez decided to
attempt a reconciliation, which ultimately proved to be
unsuccessful, that she returned to Alabama. Following the
unsuccessful reconciliation, Beaugez again returned to
Mississippi in March 2018 with the intent to remain there. The
fact that she received a second Alabama traffic citation on July
27, 2018 (Plaintiff’s ex. 6; Doc. 35 at 6), and at the time,
presented her Alabama driver’s license that listed a Demopolis
address is of no moment given her testimony and supporting
4
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D. Timeliness
Notwithstanding the Court’s finding that
diversity jurisdiction existed at the time of removal,
the inquiry does not end there. In her reply filed on
December 8, 2018 (doc. 21), Shipley argues for the
first time that the removal was untimely because
Defendants did not discover any new facts about the
case between the filing of the complaint and the
removal; thus, the case should have been removed
much earlier. (Id.). Upon removal of an action to
federal court, 28 U.S.C. § 1447(c) implicitly
recognizes two bases upon which a district court may
order a remand: “when there is (1) a lack of subject
matter jurisdiction or (2) a defect other than a lack of
subject matter jurisdiction.” Hernandez v. Seminole
Cty., 334 F.3d 1233, 1236-37 (11th Cir. 2003)
(citation omitted).
Section 1447(c) provides, in
pertinent part, that:
A motion to remand the case on the basis of any
defect other than lack of subject matter
jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a). If at any time before final judgment it
documents that, at the time, she had relocated back to
Mississippi and acquired a residence and employment in
Mississippi, that she was passing through Alabama en route to
somewhere else, and that she had not yet renewed her
Mississippi license, which expired while she was still living in
Alabama in January 2018. (Def. exs. 3, 4, 5, 6; Doc. 35-1 at 326). Thus, her Alabama driver’s license was the only valid
license she possessed at the time. (Plf. exs. 1, 2, 3; Doc. 35 at 13).
50a
appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.
An order remanding the case may require
payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the
removal.
28 U.S.C. § 1447(c) (emphasis added).
Courts have repeatedly held that the timeliness of
removal is a procedural defect, not a jurisdictional
one, see Pretka, 608 F.3d at 751-52, and that failure
to comply with § 1447(c) waives any objection to a
procedural defect. RC Lodge, LLC v. SE Property
Holdings, Inc., 2012 U.S. Dist. LEXIS 98199, 2012
WL 2898815, *6 (S.D. Ala. July 16, 2012)(citing
Wilson v. General Motors Corp., 888 F.2d 779, 781
n.1 (11th Cir. 1989)). The Court has broad discretion
to decide whether a party has waived a procedural
defect. See Piper Jaffray & Co. v. Severini, 443 F.
Supp. 2d 1016, 1020 (W.D. Wis. 2006)(“[a] district
court has broad discretion in deciding whether a
plaintiff has waived its right to object to procedural
irregularities in removal proceedings.”); Premier
Holidays Int’l, Inc. v. Actrade Capital, Inc., 105 F.
Supp. 2d 1336, 1339 (N.D. Ga. 2000) (“this court has
the discretion to deny remand even where the
removal is untimely”).
In this case, there is no question that Shipley
filed her motion seeking remand within thirty days
of Defendants’ removal. However, while the Notice
of Removal expressly alleged that it was timely filed,
the sole issue raised in Shipley’s remand motion was
related to subject matter jurisdiction, namely that
complete diversity of citizenship was lacking. No
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procedural defects were raised. It was only in
Shipley’s reply, filed some fifty-four days after the
Notice of Removal, that Shipley asserted that the
removal was untimely.
Courts are split over the issue of whether the
timely filing of a motion to remand alleging a
procedural defect, such as lack of unanimity, is
sufficient to preserve a timeliness or other
procedural objection under § 1447(c). In Northern
California Dist. Council of Laborers v. PittsburghDes Moines Steel Co., 69 F.3d 1034 (9th Cir. 1995),
the Ninth Circuit held that where the plaintiff’s
remand motion was filed within thirty days, but no
defect in the removal procedure was ever raised until
a reply brief filed more than thirty days after the
removal petition, the plaintiff had waived any
procedural objections. The court reasoned that “the
purpose of the 30-day time limit is to resolve the
choice of forum at the early stages of litigation, and
to prevent the shuffling of cases between state and
federal courts after the first thirty days.” Id. at 1038
(citations and internal quotation marks omitted).
The court thus concluded that the defect in removal
must be raised “promptly,” or the statutory purpose
would be defeated. Id.
The Fifth Circuit took the opposite view in
BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d
466, 471 (5th Cir. 2012). In BEPCO, the Fifth
Circuit rejected “any suggestion that the timing of
the presentation of a removal defect -- rather than
the submission of the remand motion -- is what
matters for a timeliness analysis under § 1447(c).”
Id. There is no controlling precedent in this circuit,
but in RC Lodge, 2012 U.S. Dist. LEXIS 98199, the
52a
court discussed the conflict.
In that case, the
plaintiffs’ motion to remand only raised lack of
subject matter jurisdiction; however, fifty-two days
later, plaintiffs argued that remand was required
because all of the defendants had not consented to
the removal. In RC Lodge, the court recognized the
conflict and observed:
The Fifth Circuit found section 1447(c)
unambiguous in this respect, 675 F.3d at 471, but
the Court is not so sure. After all, the sort of
motion to remand that must be filed within 30
days of removal is specifically described as one
“on the basis of any defect” in removal procedure.
A motion to remand that asserts no defect in
removal procedure cannot easily be characterized
as one made “on the basis” of such a defect. In
the Court’s view, this language renders the
statute at least ambiguous and so opens the door
to examination of its purpose in order to resolve
the ambiguity. The Ninth Circuit considered that
purpose and found it to bolster its reading of the
statute. 69 F.3d at 1038.
RC Lodge, 2012 U.S. Dist. LEXIS 98199.
The court in RC Lodge ultimately decided that it
was not necessary to resolve the issue because the
defendant had not argued that the plaintiffs’ consent
argument was untimely under § 1447(c). See RC
Lodge, 2012 U.S. Dist. LEXIS 98199. Several courts
that have resolved the issue have endorsed the
reasoning set forth in Pittsburg-Des Moines and have
held that an attack on the timeliness of removal, first
raised more than thirty days after a notice of
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removal, is waived.
See Engh v. SmithKline
Beecham Corp., 2007 U.S. Dist. LEXIS 85882, 2007
WL 4179361, *2 (D. Minn. Nov. 20, 2007) (court
refused to entertain the plaintiffs’ argument that
remand was necessary due to untimeliness of the
removal notice when plaintiff’s first raised the issue
in its reply brief almost two months after the
removal notice was filed.); Hoste v. Shanty Creek
Mgmt., Inc., 246 F. Supp. 2d 776, 780 (W.D. Mich.
2002) (holding that the plaintiff’s assertion of
untimeliness was untimely when first raised thirtysix days after the notice of removal was filed, despite
the timely filing of a remand motion.); see also Clark
v. USAA Cas. Ins. Co., 2015 U.S. Dist. LEXIS
155947, 2015 WL 7272305, *2 (M.D. Fla. Nov. 18,
2015)(court held that the plaintiff waived any
objection to the timeliness of a removal where the
issue was not raised in his motion to remand but was
instead raised for the first time at a hearing four
months later.); Robinson v. Affirmative Ins.
Holdings, Inc., 2013 U.S. Dist. LEXIS 28306, 2013
WL 838285, *2 (N.D. Ala. Mar. 1, 2013) (by filing a
motion to remand challenging only the amount in
controversy, plaintiff expressly waives any objection
to defendants’ untimely removal.); accord Harris v.
JLG Indus., 2016 U.S. Dist. LEXIS 9195, *28 (S.D.
Ala. Jan. 11, 2016), report and recommendation
adopted by, 2016 U.S. Dist. LEXIS 9196 (S.D. Ala.
Jan. 27, 2016).
In this action, Defendants argue that Shipley
waived the timeliness argument because it was not
raised in her motion to remand, but was instead
raised fifty-four days after the filing of the Notice of
Removal. Because the timeliness of a removal is a
54a
procedural, rather than a jurisdictional defect, it
must be raised within thirty days of the Notice of
Removal.
Shipley failed to timely raise the
timeliness of the removal; therefore, based on the
rationale of Pittsburg-Des Moines, 69 F.3d 1034, the
undersigned finds that Shipley waived the timeliness
argument. Thus, her motion to remand is due to be
denied.
III. CONCLUSION.
For the reasons set forth above, the undersigned
RECOMMENDS that Plaintiff’s Motion to Remand
(Doc. 10) be DENIED.
Notice of Right to File Objections
A copy of this report and recommendation shall
be served on all parties in the manner provided by
law. Any party who objects to this recommendation
or anything in it must, within fourteen (14) days of
the date of service of this document, file specific
written objections with the Clerk of this Court. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala.
GenLR 72(c). The parties should note that under
Eleventh Circuit Rule 3-1, “[a] party failing to object
to a magistrate judge’s findings or recommendations
contained in a report and recommendation in
accordance with the provisions of 28 U.S.C.
§ 636(b)(1) waives the right to challenge on appeal
the district court’s order based on unobjected-to
factual and legal conclusions if the party was
informed of the time period for objecting and the
consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may
55a
review on appeal for plain error, if necessary, “in the
interests of justice.” 11th Cir. R. 3-1. In order to be
specific, an objection must identify the specific
finding or recommendation to which objection is
made, state the basis for the objection, and specify
the place in the Magistrate Judge’s report and
recommendation where the disputed determination
is found. An objection that merely incorporates by
reference or refers to the briefing before the
Magistrate Judge is not specific.
DONE this 19th day of June, 2019.
/s/ SONJA F. BIVINS
UNITED STATES
MAGISTRATE JUDGE
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