United States District Court, M.D. Florida, Orlando Division
ANTOON II District Judge.
Armstrong filed this negligence action against Starwood
Hotels & Resorts Worldwide, Inc. in state court, (Compl,,
Doc, 2), and Starwood removed it to this Court, (Notice of
Removal, Doc. 1). Now pending is Armstrong's Motion for
Remand (Doc. 8), in which Armstrong asserts that
Starwood's Notice of Removal was untimely. As set forth
below, the motion is denied, but Starwood will be required to
file an amended notice of removal to correct its
case filed in state court may be removed by the defendant to
federal court if the case could originally have been brought
in federal court. 28 U.S.C. § 1441(a). As relevant here,
federal district courts have original jurisdiction over civil
actions where the amount in controversy exceeds the sum of
$75, 000 and is between "citizens of different States,
" 28 U.S.C. § 1332(a)(1), or "citizens of a
State and citizens or subjects of a foreign state, "
id. § 1332(a)(2). District courts do not,
however, have original jurisdiction under § 1332(a)(2)
"of an action between citizens of a State and citizens
or subjects of a foreign state who are lawfully admitted for
permanent residence in the United States and are domiciled in
the same State." Id. § 1332(a)(2).
a notice of removal must be filed within thirty days of
receipt by the defendant of a copy of the initial pleading.
Id. § 1446(b)(1). But "if the case stated
by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, or other paper from which it may first be
ascertained that the case is one which is or has become
removable." Id., § 1446(b)(3).
Factual and Procedural Background
August 31, 2016, Armstrong filed his Complaint in the Circuit
Court of the Ninth Judicial Circuit, in and for Orange
County, Florida, alleging a negligence claim against Starwood
arising from an injury Armstrong suffered while he was a
guest at a property owned and operated by Starwood in
Orlando, Florida. (Compl., Doc. 2). The Complaint alleges
that Starwood "is a foreign corporation authorized to do
business and doing business in Orange County, Florida, "
(id., ¶ 2), but it contains no allegations as
to the citizenship of either Armstrong or Starwood. The
Complaint seeks "damages that exceed" $15, 000.
receiving the Complaint on September 2, 2016, Starwood
promptly served a request for admissions inquiring into
Armstrong's citizenship. (See Notice of Removal,
Doc. 1, at 1 & 3). Armstrong responded on October 24,
2016, and Starwood removed the case to this Court on November
21, 2016, based on diversity of citizenship, (Id. at
1-2). Armstrong now moves for remand, arguing that
Starwood's Notice of Removal was untimely. (Mot., Doc.
8). Starwood opposes remand and maintains that its Notice of
Removal was timely filed. (Resp., Doc. 13).
does not contest that this Court has diversity jurisdiction
over this case- challenging neither diversity of citizenship
nor the requisite amount in controversy-but he argues that
Starwood's Notice of Removal was untimely because it was
not filed within thirty days of Starwood's receipt of the
Complaint. Although this argument must be rejected and
Armstrong's motion for remand will be denied, the
jurisdictional allegations of the Notice of Removal are
deficient and require amendment.
Notice of Removal was not untimely. Starwood was not required
to remove the case under 28 U.S.C. § 1446(b)(1) within
thirty days of its receipt of the Complaint because the
Complaint was silent as to the parties' citizenship and
thus "the case stated by the initial pleading [was] not
removable." 28 U.S.C. § 1446(b)(3); see,
e.g., Lovern v. Gen. Motors Corp.. 121 F.3d
160, 162 (4th Cir. 1997) (concluding that "only where an
initial pleading reveals a ground for removal will the
defendant be bound to file a notice of removal within 30
days"); accord Harris v. Bankers Life & Cas.
Co., 425 F.3d 689, 694-95 (9th Cir. 2005) (agreeing with
Lovern and other circuits that have ruled on the
issue). The timeliness of Starwood's Notice of Removal is
therefore governed by § 1446(b)(3) rather than §
1446(b)(1). As earlier noted, under § 1446(b)(3) a
notice of removal is timely if it is "filed within 30
days after receipt by the defendant, through service or
otherwise, of a copy of an emended 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.
explains in the Notice of Removal that it served a request
for admissions on Armstrong in order to determine whether the
parties were diverse. (Doc. 1 at 3). Specifically, Starwood-a
citizen of Maryland and Connecticut for purposes of diversity
jurisdiction-asked Armstrong on September 22, 2016, to admit
that he was not on the date of the subject
incident a citizen of Maryland or Connecticut and
that he was not on the date of the request a citizen of
either of those states. (Id.; see also
Starwood's Req. for Admiss., Ex. B to Doc. 1, at 1-2).
Armstrong responded on October 24, 2016, that he was not a
citizen of either of those states on either date. (Doc. 1 at
3; see also Armstrong's Resp. to Starwood's
Req. for Admiss., Ex. C to Doc. 1, at 1-2). Starwood then
filed its Notice of Removal, relying on Armstrong's
responses as "other paper" under § 1446(b)(3)
and alleging that because it is a citizen of Maryland and
Connecticut while Armstrong "is not a citizen ... of
either Maryland or Connecticut, complete diversity of
citizenship exists between [Armstrong] and Starwood."
(Doc. 1 at 3-4).
motion for remand, Armstrong asserts that Starwood knew
months earlier that Armstrong's citizenship was diverse
based on two pre-suit demand letters, at least one of which
included Starwood's own incident report regarding the
event at issue; that report listed a Canadian "home
address" for Armstrong. Armstrong asserts that this
indicated Armstrong "lived in Canada" on the date
of the injury and that "[t]his was a clear indication
that [Armstrong] was diverse in citizenship to"
Starwood. (Doc. 8 at 5). Armstrong also argues that the
demand letters "provided evidence that [Armstrong] was
not a resident of Florida, Maryland or Connecticut"
because they indicated: that Armstrong "followed up with
St. Michael's Hospital in Canada where he is receiving
physical therapy"; that Armstrong, an actor, was
"unable to audition for a leading role in a Broadway
musical"; that at the time of the injurious incident
Armstrong "was vacationing with his family at"
Starwood's Orlando property; that Armstrong
"continued his care when he returned to Toronto where he
had ongoing occupational therapy"; and that Armstrong
treated with a doctor at a hotel in Kingston, Ontario. (Doc.
8 at 5-6 (citing pre-suit demand letters)).
Armstrong's reliance on pre-suit demand letters and
Starwood's alleged subjective knowledge of his
citizenship is misplaced for several reasons. First, pre-suit
demand letters do not constitute "other paper"
under 28 U.S.C. § 1446(b)(3), and courts are not
required "to inquire into the subjective knowledge of
the defendant, an inquiry that could degenerate into a
mini-trial regarding who knew what and when."
Lovern, 121 F.3d at 162; see also Chapman v.
Powermatic, inc., 969 F.2d 160, 163-64 (5th Cir. 1992);