United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
Neva Doiel sued Defendants Smith’s Food & Drug
Centers, Inc., the Kroger Co., and Kroger Dedicated Logistics
(collectively, “Smith’s”), after an
employee ran into her while pushing a cart stacked high with
food, she fell, and was injured in one of Smith’s
grocery stores in Dayton, Nevada. (ECF No. 1-1.)
Smith’s removed the case to this Court. (ECF No. 1.)
Before the Court is Plaintiff’s motion to remand, which
is based on the contention that Smith’s’ removal
was untimely (the “Motion”). (ECF No. 9.)
Because Plaintiff’s pre-litigation demand letter did
not start the removal clock running under applicable Ninth
Circuit precedent, and as further explained below, the Court
will deny the Motion.
following allegations come from the Complaint. (ECF No. 1-1.)
Plaintiff was shopping in the frozen aisle of a Smith’s
grocery store in Dayton, Nevada. (Id. at 3-4;
see also ECF No. 9-1 at 8-12.) An employee pushed a
cart loaded with food into her. (ECF No. 1-1 at 4.)
Plaintiff was knocked over and injured. (Id.)
filed her Complaint in the Second Judicial District Court in
and for the County of Washoe (ECF No. 1-1 at 2), and
Smith’s removed based on diversity jurisdiction (ECF
No. 1 at 1). Plaintiff appears to assert a single claim of
negligence in her Complaint. (ECF No. 1-1 at 4.) Plaintiff
seeks general and special damages in excess of $15, 000 and
her costs of suit. (Id.)
Smith’s’ removal and the arguments presented in
the Motion, Plaintiff sent a demand letter on February 6,
2019 to Sedgwick, Smith’s’ third-party claims
administrator, stating that Plaintiff suffered $198, 287.71
in medical expenses and $222, 420.00 in lost wages as a
result of this accident. (ECF Nos. 9 at 2, 9-1 at 24.)
Sedgwick wrote back on February 12, 2019 that it could
neither accept nor reject Plaintiff’s demand. (ECF No.
9-1 at 25.) Plaintiff filed her Complaint in state court on
April 15, 2019, and Smith’s was served on May 2, 2019.
(ECF Nos. 1-1 at 2, 9 at 2, 9-2.) Plaintiff filed a notice of
exemption from arbitration in the state court proceeding on
June 20, 2019 that also identified Plaintiff had incurred
medical expenses sufficient to satisfy the
amount-in-controversy requirement. (ECF Nos. 9 at 3, 11 at
4.) Smith’s removed the case to this Court on July 11,
2019, citing Plaintiff’s notice of exemption from
arbitration as the document indicating the
amount-in-controversy requirement was satisfied. (ECF No. 1
courts are courts of limited jurisdiction, having
subject-matter jurisdiction only over matters authorized by
the Constitution and Congress. See U.S. Const. art.
III, § 2, cl. 1; see also, e.g., Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A suit filed in state court may be removed to federal
court if the federal court would have had original
jurisdiction over the suit at the commencement of the action.
See 28 U.S.C. § 1441(a). However, courts
strictly construe the removal statute against removal
jurisdiction, and “[f]ederal jurisdiction must
be rejected if there is any doubt as to the right of removal
in the first instance.” Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). The party
seeking removal bears the burden of establishing federal
jurisdiction. See Kokkonen, 511 U.S. at 377.
under 28 U.S.C. § 1446(b) is determined through
“examination of the four corners of the applicable
pleadings, not through subjective knowledge or a duty to make
further inquiry.” Harris v. Bankers Life and Cas.
Co., 425 F.3d 689, 694 (9th Cir. 2005). The
Harris court continued:
Thus, the first thirty-day requirement is triggered by
defendant’s receipt of an ‘initial
pleading’ that reveals a basis for removal. If no
ground for removal is evident in that pleading, the case is
‘not removable’ at that stage. In such case, the
notice of removal may be filed within thirty days after the
defendant receives ‘an amended pleading, motion, order
or other paper’ from which it can be ascertained from
the face of the document that removal is proper.
Id. (citing 28 U.S.C. § 1446(b)).
does not request a specific amount of damages in the
Complaint, instead alleging both general and special damages
in excess of $15, 000. (ECF No. 1-1.) But the parties agree
they are diverse and the amount in controversy exceeds ...