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Armstrong v. Starwood Hotels & Resorts Worldwide Inc.

United States District Court, M.D. Florida, Orlando Division

April 26, 2017

EUGENE ARMSTRONG, Plaintiff,
v.
STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Defendant.

          ORDER

          JOHN ANTOON II District Judge.

         Eugene 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 jurisdictional allegations.

         I. Legal Standards

         A civil 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).

         Generally, 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).

         II. Factual and Procedural Background

         On 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. (Id. ¶1).

         After 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).

         III. Discussion

         Armstrong 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.

         Starwood's 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. § 1446(b)(3).

         Starwood 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[1] 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).

         In his 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)).

         However, 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); ...


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