2021 WL 1318321

United States District Court, W.D. Kentucky.
KARLETTA JOYNER PLAINTIFF
v.
BESTWAY EXPRESS, INC. and JOHN BOUVY DEFENDANTS and THIRD-PARTY PLAINTIFFS
v.
LESLIE HAY THIRD-PARTY DEFENDANT
CIVIL ACTION NO: 4:20-CV-00100-JHM
|
Filed 04/08/2021

MEMORANDUM OPINION AND ORDER
Joseph H. McKinley Jr., Senior Judge United States District Court
*1 This matter is before the Court on Plaintiff Karletta Joyner’s Motion to Remand and Motion for Leave to File First Amended Complaint. [DN 21, DN 24]. Third-Party Defendant Leslie Hay recently joined Joyner’s Motion to Remand. [DN 29]. Fully briefed, this matter is ripe for decision. For the following reasons, Joyner’s Motion for Leave to File First Amended Complaint is GRANTED and Joyner’s Motion to Remand is GRANTED.

I. BACKGROUND
Joyner was driving a borrowed car in the right lane of a bridge. [DN 1-3 ¶ 7]. The car is owned by her friend Leslie Hay, a Kentucky citizen. [DN 21-1 at 1]. The car broke down “just before the crest of the hill on the bridge.” [DN 1-3 ¶ 8]. Joyner’s headlights and taillights were on and she turned on her emergency flashing lights. [Id. at ¶ 9]. Several vehicles went around her as she tried to call for help. [Id.]. At that time, Defendant John Bouvy was driving a tractor trailer in the right lane of the bridge. [Id. at ¶ 10]. Defendant Bestway owns the tractor-trailer. [Id.]. Bouvy hit her car, which caused Joyner’s car to “spin underneath his truck.” [Id. at ¶ 11]. Then, Joyner’s car “became pinned under the trailer of Bouvy’s rig, and she was trapped.” [Id.]. Joyner “suffered severe and permanent injuries and mental trauma.” [Id. at ¶ 12].

Joyner sued Bestway and Bouvy in Henderson Circuit Court alleging that Bouvy was negligent and Bestway was vicarious liable. [Id. at ¶¶ 13–37]. Defendants removed the case to federal court under diversity jurisdiction. [DN 1]. Joyner is a Kentucky citizen; Bouvy and Bestway are Indiana citizens. [DN 1 ¶¶ 2–3]. It is not disputed that Joyner properly removed the case to federal court. [DN 21-1 at 2].

The magistrate judge entered a scheduling order on August 26, 2020. [DN 8]. The Order included specific instructions on amending pleadings and adding parties:
No later than September 30, 2020, the Plaintiff shall file all motions to join additional parties. All motions to amend the pleadings shall be filed by the Plaintiff no later than September 30, 2020.
No later than September 30, 2020, the Defendants shall file all motions to join additional parties. All motion to amend the pleadings shall be filed by the Defendants no later than September 30, 2020.
[Id. at ¶¶ 2(a)–(b)]. On September 28, 2020, Defendants moved to amend the scheduling order to allow them until October 30, 2020 to file a motion to join additional parties because Hay failed to appear for his scheduled deposition on September 24, 2020. [DN 9 at 1–2]. It did not request that any other deadlines be amended. [Id. at 1]. Defendants scheduled the deposition to help them to determine whether Hay should be added as a party to the case. [Id. at 2]. When Defendants “inquired as to whether Plaintiff wanted to join in this Motion or would be agreeable to such an amendment to the Scheduling Order [DE#8]. Plaintiff refused.” [Id.].

On September 29, 2020, Defendants requested permission to file a third-party complaint against Hay because they believe that Joyner’s car broke down due to “Hay’s failure to properly maintain the vehicle in road-worthy condition.” [DN 10 at 1]. Defendants also included their third-party complaint with their request. [DN 10-1]. Joyner responded to Defendants’ motions regarding amending the scheduling order and filing a third-party complaint by saying that “she has no objection to the Defendants’ Motion for Leave to File a Third-Party Complaint. Plaintiff also states that Defendants’ Motion to Amend Scheduling Order is moot, as Defendant has met the deadline for adding additional parties set forth in the Court’s Scheduling Order.”1 [DN 11 at 1] [emphasis added]. The magistrate judge granted Defendants’ request to amend the scheduling order on October 9, 2020, stating that “No later than October 30, 2020, the Defendants shall file all motions to join additional parties. All motions to amend the pleadings shall be filed by Defendants no later than October 30, 2020.” [DN 12 at 1]. On the same day, the magistrate judge also granted Defendants’ request to file a third-party complaint against Hay. [DN 13 at 1].

*2 On November 30, 2020, without leave of Court, Joyner filed what she called a “crossclaim” against Hay based on the allegations in the third-party complaint. [DN 17, DN 21-1 at 3]. Then, on January 25, 2021, Joyner moved to remand this case back to state court. [DN 21]. Joyner said in her reply brief for the motion to remand that she “mistakenly labeled her claim against Hay as a crossclaim” and is now “seeking leave to amend her Complaint concurrently with this Reply.”2 [DN 25 at 1–2]. Joyner moved to amend her complaint on February 12, 2021 under Federal Rule of Civil Procedure 153 explaining that she “was not aware of the extent of Leslie Hay’s negligence” until Defendants filed their third-party complaint against Hay. [DN 24 at 1]; [DN 28 at 2] [“Plaintiff had no knowledge of Hay’s negligence until after the Third-Party Complaint was filed by Defendants [.]”].

III. DISCUSSION
Adding a nondiverse party like Hay after removal is governed by 28 U.S.C. § 1447(e).4 See Telecom Decision Makers, Inc. v. Access Integrated Networks, Inc., 654 F. App’x 218, 221 (6th Cir. 2016) (explaining that under § 1447(e) “a district court may deny a plaintiff’s motion to join a defendant whose joinder would destroy subject-matter jurisdiction.”); see also Phillip-Stubbs v. Walmart Supercenter, No. 12-10707, 2012 WL 1952444, at *4 (E.D. Mich. May 25, 2012) (“A post-removal attempt to add non-diverse parties, whether by right or by leave, implicates section 1447(e) and requires the court to exercise discretion and adopt one of the two options available to it.”).

*3 Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). Joyner seeks to join Hay after Defendants removed this case to federal court. Hay as a Kentucky citizen is a nondiverse party. Thus, Joyner’s attempt to add Hay is subject to review under § 1447(e).

Courts consider four factors when determining how to exercise its discretion under § 1447(e): “(1) the extent to which the proposed amendment’s intent was to destroy federal jurisdiction, (2) whether the plaintiff was dilatory in filing the motion to amend, (3) whether the plaintiff would be significantly injured if the motion to amend were denied, and (4) any other equitable factors.” Telecom Decision Makers, Inc., 654 F. App’x at 221 (citations omitted).

The extent to which the purpose of the amendment is to defeat federal jurisdiction. “Courts have consistently held that the first factor, the plaintiff’s motive for seeking post-removal joinder of a nondiverse defendant, is of ‘paramount importance.’ ” Glover v. Kia Motors Am., Inc., No. 17-CV-02825, 2018 WL 1976033, at *4 (W.D. Tenn. Apr. 25, 2018) (collecting cases). Defendants argue that “Hay was fully known to Plaintiff at the time of the filing of her original Complaint and Plaintiff could have brought claims against Hay in her original Complaint.” [DN 23 at 3]. Indeed, Joyner was using “her friend” Hay’s car. [DN 21-1 at 1]. Joyner does not deny that Hay was known to her at the time she filed suit. [DN 25 at 3]. Although, Joyner does say that she “was not aware of the extent of Leslie Hay’s negligence” when she filed the lawsuit. [DN 24 at 1].

Joyner argues that Dickson Industrial, Inc. v. Collins, No. 20-cv-412, 2020 WL 3887798 (S.D. Ohio July 10, 2020) is analogous here. [DN 25 at 3]. In Collins, the plaintiff sought to amend its complaint to add a party that would destroy diversity jurisdiction. Id. at *3. The court found that the first factor weighed in favor of the plaintiff because while it was “persuaded that Plaintiff was at a minimum partially motivated to join” the party as a defendant to destroy diversity jurisdiction. Id. The court also found that the party that the plaintiff sought to join was a “real party in interest” because “[the p]laintiff [could] not obtain complete relief unless” the party was joined as a defendant. Id. The Court explained that “[w]hen a ‘nondiverse party is a real party in interest, it is immaterial that [its] joinder was motivated by a desire to defeat jurisdiction.’ ” Id. (quoting Certain Interested Underwriters at Lloyd’s, London, England v. Layne, 26 F.3d 39, 42 (6th Cir. 1994)) (second alteration in original).

Defendants provide no argument that Collins is distinguishable here. Like the court in Collins, the Court is persuaded that Joyner is at a minimum partially motived to join Hay to destroy diversity jurisdiction. But it appears that Hay is a real party and Defendants do not rebut that. Defendants do not argue that Joyner has no viable claim against Hay, nor do they argue that Hay was fraudulently joined. This factor weighs in favor of joinder.

Whether the plaintiff has been dilatory in seeking amendment. “Some courts have assessed the timeliness of the amendment in relation to commencement of the action and found that delay until after removal is dilatory” and “[o]ther courts have measured dilatoriness from the date of removal.” Huff v. AGCO Corp., No. 17-CV-354, 2018 WL 2113195, at *4 (E.D. Ky. May 8, 2018) (citations omitted). In relation to the commencement of the action, since Joyner was using Hay’s car, Joyner should have been aware of Hay when the initial complaint was filed in May 2020. [DN 1-5, DN 21-1 at 1]. Then, Joyner filed a crossclaim in November 2020 and moved to amend her complaint in February 2021. [DN 17, DN 24]. If dilatoriness is measured from the date of removal in June 2020, then Joyner has been dilatory.

*4 Joyner claims that she “was not aware of the extent of Leslie Hay’s negligence” when she filed this lawsuit in state court. [DN 24 at 1]. If Joyner was not aware of Hay’s negligence until Defendants filed their third-party complaint, then Joyner is still dilatory. [DN 28 at 2]. Defendants filed its third-party complaint as an attachment to its Motion for Leave to File a Third-Party Complaint on September 29, 2020. [DN 10-1], So, Joyner should have been aware of Hay’s potential negligence at least since September 29, 2020. Yet she waited until February 12, 2021 to try to add Hay as a party—she waited over four months. [DN 24]. If the Court considers the date that Joyner filed a claim against Hay via a crossclaim, then Hay inexplicably waited about two months to add Hay as a party. [DN 17]. This factor weighs in favor of denying joinder.

Whether the plaintiff will be significantly prejudiced if amendment is not allowed. Joyner argues that if she is not permitted to add Hay as a defendant, she “would be forced to pursue her claim against Hay in state court, while this case proceeds in federal court.” [DN 25 at 4]. This factor weighs in favor of remand because not allowing Joyner to add Hay as a party would require Joyner to litigate the suit in federal court and state court. Huff, 2018 WL 2113195, at *5 (finding that third factor favors remand since “Huff will face significant prejudice if joinder is denied because she will be forced to litigate this suit in two separate forums in order to obtain complete relief.”) (citation omitted); Collins, 2020 WL 3887798, at *4 (“Nevertheless, because denying joinder would require Plaintiff to proceed without a necessary party or litigate the same case in multiple fora, the third factor weighs slightly in Plaintiff’s favor”).

Any other equitable factors. No party has asserted any other equitable factors for the Court to consider. However, “courts analyzing the other equitable factors often consider the defendant’s substantial interest in proceeding in a federal forum.” Glover, 2018 WL 1976033, at *9 (cleaned up). Here, Defendants have a substantial interest in proceeding in a federal forum “to avoid the insidious home-court advantage which diversity jurisdiction seeks to neutralize.’ ” Huff, 2018 WL 2113195, at *5 (cleaned up). This factor weighs in favor of denying joinder.

The second and fourth factors weigh in favor of denying joinder and retaining jurisdiction. The first and third factor weigh in favor of granting joinder and remanding to state court. Considering the importance of the first factor, the Court will exercise its discretion under § 1447(e) and permit joinder of Hay and remand the case back to state court.

IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Joyner’s Motion for Leave to File First Amended Complaint is GRANTED and Joyner’s Motion to Remand is GRANTED. This case is REMANDED to the Henderson County Circuit Court.

April 8, 2021

cc: counsel of record

Henderson County Circuit Court

All Citations
Slip Copy, 2021 WL 1318321

Footnotes

1
It is odd that Joyner initially admitted that Defendants timely met the deadline for adding a party because she now claims the opposite is true. See DN 28 at 2 (“Defendants ignore the fact that they themselves added Hay after the September deadline[.]”). Defendant did not add Hay after the deadline because their motion to add Hay as a third-party defendant was filed before the deadline in the scheduling order. [DN 8, DN 10]. The only party attempting to untimely add a party is Joyner.

2
Under Federal Rule of Civil Procedure 13(g) crossclaims are claims “by one party against a coparty.” The Court doubts that Hay, as a third-party defendant, is a coparty to Joyer as a plaintiff. See Asher v. Unarco Material Handling, Inc., No. 06-548, 2008 WL 130858, at *4 (E.D. Ky. Jan. 10, 2008) (“However, if a plaintiff has not brought suit against the third-party defendant, the third-party defendant only shares ‘like status’ with other third-party defendants and can only bring crossclaims against other third-party defendants, as Rule 14(a)(2)(B) provides.”). In any event, even if the crossclaim was proper, Joyner brought the claims late per the scheduling order.

3
While neither party mentions Federal Rule of Civil Procedure 16, it appears that Rule 16 would be a rule at issue because Joyner seeks to untimely add Hay as a party under the scheduling order. Hill v. Banks, 85 F. App’x 432, 433 (6th Cir. 2003)) (“[O]nce a scheduling order’s deadline passes, a party must first show good cause under Rule 16(b) for the failure to seek leave to amend prior to the expiration of the deadline before a court will consider whether the amendment is proper under Rule 15(a).” ). Defendant argues that Joyner’s motion to amend her complaint is late. See [DN 26 at 1] [“Pursuant to the Court’s Scheduling Order [DE #8], Plaintiff was required to file all motions to join additional parties or to amend pleadings ‘no later than September 30, 2020.’ Plaintiffs Motion for Leave to File First Amended Complaint was filed on February [1]2, 2021.”].

4
Joyner asserts that under 28 U.S.C. § 1447(c) the case must be remanded. [DN 21-1 at 5]. Joyner argues that remand is appropriate under § 1447(c) because Defendants added a party whose joinder destroys subject matter jurisdiction when they asserted third-party claims against Hay. See [DN 21-1 at 3–4] [“There is no statute directly governing when a defendant adds a party whose joinder destroys subject matter jurisdiction, as here.”]; see also [DN 25 at 2] [“[The] issue before the Court is not only whether the addition of Hay, a resident of Kentucky, as a Third-Party Defendant, destroys diversity ….”]. Joyner is incorrect that Defendants asserting a third-party claim against Hay destroys diversity jurisdiction. “Joining a third-party defendant non-diverse to plaintiff in the underlying action based on diversity of plaintiff and defendant does not destroy subject matter jurisdiction grounded on the court’s diversity jurisdiction over plaintiff’s claim.” Mar-Cone Appliance Parts Co. v. Mangan, 879 F. Supp. 2d 344, 357 (W.D.N.Y. 2012) (citations omitted); Grimes v. Mazda N. Am. Operations, 355 F.3d 566, 572–73 (6th Cir. 2004) (“Here, the parties to the original action and the amended complaint were all diverse. The addition of the Commonwealth as a third-party defendant clearly arises from the ‘same nucleus of operative fact’ because plaintiff had alleged that the accident was caused, at least in part, by Kentucky’s failure to adequately warn drivers about a known dangerous road. Accordingly, diversity was not destroyed when the Department was added as a third-party defendant and the district court properly retained subject-matter jurisdiction.”).

2021 WL 1176769

United States District Court, N.D. Ohio, Eastern Division.
ELIZABETH PERRY, Plaintiff,
v.
NORFLEET TRANSPORTATION, LLC, ET AL., Defendants.
Case No. 1:21-CV-104
|
03/29/2021

PAMELA A. BARKER, U. S. DISTRICT JUDGE

MEMORANDUM OF OPINION AND ORDER
*1 This matter is before the Court on the Motion to Remand to State Court of Plaintiff Elizabeth Perry filed on February 1, 2021 (“Plaintiff’s Motion”). (Doc. No. 4.) On February 16, 2021, Defendants Norfleet Transportation, LLC, Donald H. Rodgers, and Quentin D. Campbell filed their Memorandum Contra Plaintiff’s Motion (“Defendants’ Opposition”). (Doc. No. 5.) Plaintiff did not file a Reply in support of Plaintiff’s Motion. Plaintiff’s Motion is now ripe for a decision. For the reasons set forth below, Plaintiff’s Motion is DENIED.

I. BACKGROUND

A. The State Court Action
On March 19, 2020, Plaintiff Elizabeth Perry (“Plaintiff”) filed a Complaint in the Cuyahoga County Court of Common Pleas, Case No. CV-20-931207, naming Norfleet Transportation, LLC (“Norfleet”), Donald H. Rodgers (“Rodgers”), and Quentin D. Campbell (“Campbell”) as defendants, alleging that she sustained personal injuries as a result of a motor vehicle accident that occurred on March 21, 2018 as a result of the negligence, recklessness, and/or statutory violations of Defendants (“the State Court action”). (Doc. No. 1-2.) In addition to a prayer for compensatory damages, the Complaint includes a prayer for attorneys’ fees and for punitive damages because the driver of the semi-tractor trailer, Campbell, allegedly fled the scene of the accident. (Id.)

On May 15, 2020, Defendants filed an Answer to the Complaint in the State Court action, after Plaintiff perfected service on Rodgers and Campbell on April 15, 2020 and March 27, 2020, respectively. (Doc. No. 1-3; Doc. No. 1-5, PageID # 34; Doc. No 1-4, PageID # 31.) Service was perfected on Norfleet on September 14, 2020. (Doc. No. 1-4, PageID # 31.) On July 20, 2020, Plaintiff’s counsel served Defendants’ counsel with Plaintiff’s responses to Interrogatories and a Request for Production of Documents. (Doc. No. 1-6.)

Plaintiff was 22 at the time of the accident. (Doc. No. 1-6, PageID # 37.) In Response to Interrogatory Number 4 asking Plaintiff to describe her injuries alleged to have been sustained in the accident, Plaintiff stated that she “sustained injuries to my neck, pain by my left shoulder blade and injuries to my back, including a herniated disc. See enclosed medical records for more detailed information …” (Doc. No. 1-6, PageID # 38-39.) In Response to Interrogatory Number 7 asking Plaintiff that if she was claiming she was not fully recovered, to state her current complaints or injury she was still suffering from, Plaintiff described monthly flare-up pain in her left shoulder making it uncomfortable to sleep, discomfort from long car rides, and anger and anxiety at “what happened, the driver fleeing the scene and [her] future medical condition due to the herniated disc.” (Doc. No. 1-6, PageID # 40.) In Response to Interrogatory Numbers 9 and 10, Plaintiff stated that at the time of the accident, Plaintiff was employed as a Cleveland Market Service Manager for Overdrive Expresso working 40 hours plus a week and missed one day of work as a result of the accident. (Doc. No. 1-6, PageID # 41.)

*2 “Plaintiff’s Medical Treatment and Damages Audit” indicated that Plaintiff’s medical treatment consisted of an emergency room visit on March 24, 2018, a Cat Scan of her neck, two doctors’ visits, and seven physical therapy visits between April 16, 2018 and May 9, 2018; and her medical bills totaled $8,901.00. (Doc. No. 1-7.)

By email to Defendants’ counsel dated September 15, 2020, Plaintiff’s counsel made a settlement demand of $1,000,000 to resolve the case, and in support thereof, quoted from Plaintiff’s emergency room Cat Scan report that included findings of “a focal central disc herniation at C3-4 indenting the ventral thecal sac which may abut the ventral cord surface. Otherwise, no significant disc protrusion or degenerative disc disease.” (Doc. No. 1-9, PageID # 65.) Plaintiff’s counsel asserted that “[t]his is a permanent injury [to his 22 year old client] and she will only get worse as she ages,” and “[t]he fear of what will develop and how her life will be affected is a major concern.” (Id.) Plaintiff’s counsel also stated that “[o]n top of the injury, she has a claim for punitive damages in that Mr. Campbell fled the scene and she had to chase him.” (Id.)

On October 28, 2020, Defendants’ counsel conducted the deposition of Plaintiff during which Plaintiff confirmed the information set forth in her Response to Interrogatories and/or testified in relevant part that: the only day she took off work because of the accident was the day following it (Doc. No. 1-8, PageID # 62); since May 9, 2018, Plaintiff has not received any medical treatment and has not needed any medication for the injuries she sustained in the accident (Id. PageID # 63); as of the date of her deposition, Plaintiff had no scheduled appointments for the herniated disc she claims resulted from the accident (Id. PageID # 64); Plaintiff has been asymptomatic except for occasional flare ups if she does not keep up with her home exercises (Id. PageID # 63); as the service manager and equipment technician for Overdrive Expresso, Plaintiff works fifty hours a week and typically drives every day or most days in her Northeast Ohio territory (Id. PageID # 60); and Plaintiff’s plan is to continue to do home exercises, see if it continues to feel fine and live with an occasional flare-up, and hope it does not get worse (Id. PageID # 64).

On December 28, 2020, Plaintiff’s counsel transmitted to Defendants’ counsel via email, an Independent Medical Report (“IME”) authored by Dr. D. Philip Stickney wherein Dr. Stickney opined in relevant part that while “no arthritic changes were seen on the recent MRI, however, these herniations have had sufficient time to resorb and heal and have now become chronic and permanent over twenty four months since the injury…the herniations at C3-4 and C6-7 are now considered permanent and substantial…and in time will produce degenerative changes.” (Doc. No. 1-10, PageID # 70.)

B. Removal to this Court
On January 14, 2021, Defendants filed their Notice of Removal of the State Court action to this Court wherein they asserted that this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) because the action is between citizens of different states and the matter in controversy more than likely exceeds the sum or value of $75,000 exclusive of interest and costs. (Doc. No. 1.) Defendants also asserted that the removal was timely under 28 U.S.C. § 1446(b)(3), because Defendants had filed their notice of removal “within 30 days after their receipt, 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.”

*3 On February 1, 2021, Plaintiff’s Motion was filed. Therein, Plaintiff does not dispute that complete diversity exists between the parties or that it is more likely that the amount in controversy exceeds $75,000 exclusive of interest and costs. What Plaintiff does dispute or argue is that pursuant to 28 U.S.C. § 1446(b)(3), removal was untimely and therefore, the case should be remanded to state court. Plaintiff’s counsel attached an Affidavit to Plaintiff’s Motion, averring that on the date of Plaintiff’s deposition or October 28, 2020, he and Defendants’ counsel had a private conversation during which Plaintiff’s $1,000,000 demand was discussed and “[a]fter scoffing at the demand, Defense counsel stated, ‘disc cases typically settle between $75,000 and $150,000’ ” and Plaintiff’s counsel responded “ ‘not this case’ based upon the injury being permanent, Ms. Perry’s fear of the future and the punitive damages claim with attorney fees for the driver fleeing the scene.” (Doc. No. 4-1, PageID # 82.)

According to Plaintiff, and based upon Plaintiff’s settlement demand of $1,000,000 in conjunction with Defendants having Plaintiff’s Responses to Interrogatories and her medical records confirming a disc herniation with impingement on the thecal sac, the deposition of Plaintiff and the conversation between Plaintiff’s counsel and Defendant’s counsel on October 28, 2020, Defendants had “solid and unambiguous information” that the amount in controversy exceeded $75,000 and the case was removable no later than October 28, 2020 and therefore, Defendants had 30 days from that date or until November 27, 2020 to remove the case to this Court. Plaintiff contends that since Defendants did not file their Notice of Removal until January 14, 2021, the Notice of Removal was not filed timely and the case should be remanded to state court pursuant to 28 U.S.C. § 1446(b)(3).

Defendants counter by asserting that Defendants did not have the required “solid and unambiguous information” that this case was removable until December 28, 2020, when Plaintiff’s counsel provided Defendants’ counsel with the IME report of Dr. Stickney, and therefore, Defendants were timely in filing their Notice of Removal on January 14, 2021.

Plaintiff did not file a reply in support of Plaintiff’s Motion, and therefore, the Court is left with only the information and evidence on the record before it.

II. ANALYSIS
Relevant to the issues presented by Plaintiff’s Motion is the following summary set forth by the Sixth Circuit in Berera v. Meza Medical Group, PLLC, to wit:
A defendant removing an action to federal court must file a notice of removal. [28 U.S.C.] § 1446(a). Generally, the defendant must file the notice of removal “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.” Id. § 1446(b)(1). The 30-day period in 1446(b)(1) starts to run only if the initial pleading contains “solid and unambiguous information that the case is removable.” Holston v. Carolina Freight Carriers Corp., No 90-1358, 1991 WL 112809, at *3 (6th Cir. June 26, 1991) (per curiam). If the initial pleading lacks solid and unambiguous information that the case is removable, the defendant must file the notice of removal “within 30 days after receipt … of a copy of an amended pleading, motion, order or other paper” that contains solid and unambiguous information that the case is removable. See 28 U.S.C. § 1446(b)(3); see also Walker v. Philip Morris USA, Inc, 443 Fed.Appx. 946, 950 (6th Cir.2011). Section 1446(b)’s requirement of solid and unambiguous information is akin to actual notice. Cf. Peters v. Lincoln Elec. Co., 285 F.3d 456, 466 (6th Cir.2002) (citation omitted) (internal quotation marks omitted). (“The intent of § 1446(b) is to make sure that a defendant has an opportunity … to remove upon being given notice in the course of the case that the right exists.”); Charles Alan Wright et al., 14C Federal Practice and Procedure § 3731 (4th ed. 2009) (“The statute requires ‘an amended pleading, motion, order, or other paper’ to act as a trigger to commence the running of a new 30-day period once the defendant has received actual notice, through one of the documents described in Section 1446(b), that a previously unremovable case has become removable.”).
*4 Berera v. Meza Medical Group, PLLC, 779 F.3d 352, 364 (6th Cir. 2015).

In Berera, the Sixth Circuit more fully expounded upon the meaning of the term or phrase “other paper” as used in § 1446(b). While acknowledging that as a general matter “documents such as deposition transcripts, answers to interrogatories and requests for admissions, … amendments to ad damnum clauses of complaints, and correspondence between the parties and their attorneys or between the attorneys,” and “a plaintiff’s responses to deposition questioning” may constitute “other paper,” the Court found that the hearing transcript at issue therein constituted an “other paper,” giving weight to the fact that such hearing transcript involved “oral statements made in the courtroom during the course of the action.” Id. at 365.

Thus, as an initial matter, the Court concludes that an off-the-record conversation had between counsel for the parties, whether before, during or after Plaintiff’s deposition, does not constitute an “other paper,” and an affidavit by one attorney setting forth averments regarding such conversation, does not constitute an “other paper” within the meaning of 28 U.S.C. § 1446(b). Therefore, the Court is not considering the conversation had between counsel on the date of Plaintiff’s deposition or October 28, 2020 in evaluating Plaintiff’s Motion.

Accordingly, the question or issue is whether Defendants’ receipt of Plaintiff’s Responses to Interrogatories and her medical records, the $1,000,000 settlement demand to include punitive damages, and Plaintiff’s deposition on October 28, 2020 together amount to or constitute “solid and unambiguous information” that the case was removable as of October 28, 2020. The Court finds that it does not.

“When determining the jurisdictional amount in controversy in diversity cases, punitive damages must be considered…unless it is apparent to a legal certainty that such cannot be recovered.” Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir.2001) (quoting Holley Equip. Corp. v. Credit Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987)). As set forth in Plaintiff’s counsel’s September 15, 2020 email or settlement demand, Plaintiff’s punitive damages claim rests upon the allegation that Campbell fled the scene of the accident. However, under Ohio law, this allegation, standing alone, is not sufficient to establish actual malice under R.C. § 2315.21(C)(1).1 Terek v. Finkbiner, No. 3:13-cv-1381, 2015 WL 5542535 (N.D. Ohio Sept. 18, 2015); Kuebler v. Gemini Transportation, No. 3:12-cv-114, 2013 WL 6410608, at *6 (S.D. Ohio Dec. 9, 2013). Thus, it is apparent to a legal certainty that under Ohio law, punitive damages cannot be recovered by Plaintiff absent something more than her allegation that Campbell fled the scene of the accident. Therefore, this allegation or assertion that forms the basis for her prayer for punitive damages in Plaintiff’s Complaint, and, in part, Plaintiff’s counsel’s demand of $1,000,000 to resolve the matter, will not be considered when evaluating whether Defendant timely filed its Notice of Removal with this Court.

*5 Thus, in the end, the Court is evaluating whether evidence of medical bills totaling $8,901.00, for an emergency room visit to include a CAT scan that documented a focal central disc herniation at C3-4 indenting the ventral thecal sac, 2 doctors’ visits, and 7 physical therapy visits, medical treatment spanning a period of less than two months immediately after the accident with no future medical treatment scheduled as of October 28, 2020, no use of any pain relievers or medication after May 9, 2018, one day of lost wages with the ability to work 50 hours a week, occasional flare-ups of shoulder pain relieved by home exercises, and no medical report documenting permanency or expected surgery or any other anticipated future medical expenses and lost income resulting therefrom, even with a written settlement demand of $1,000,000, constitutes “solid and unambiguous information” that the case was removable as of October 28, 2020. The Court finds that it does not. See Allen v. Williams, No. 20-860, 2020 WL 7631452 (M.D. La. Dec. 21, 2020) (allegations of multiple herniated discs, allegations of continued treatment as of the time of the filing of the complaint, but no details regarding the extent of medical treatment, whether injuries are permanent, the plaintiffs’ prognoses and recommended future treatment including any surgery recommendation not sufficient to find that the $75,000 jurisdictional limit was met); Davis v. Southern Farm Bureau Cas. Ins. Co., No. 20-322, 2020 WL 3000803 (M.D. La. June 4, 2020) (past medical expenses of $30,467 for back, neck, and shoulders injuries, including a sprain/contusion of the cervical and lumbar spine and shoulders, low back pain, herniated cervical disc, a herniated lumbar disc, a bulging disc, and bilateral shoulder degenerative joint disease, and a small partial tear of the supraspinatus tendon in the left shoulder, medical records showing Plaintiff’s receipt of physical therapy treatments and medication, MRI’s, epidural steroid injections, bilateral medial branch blocks, and a bilateral lumbar rhizotomy, and records reflecting the Plaintiff’s inability to return to work for a period of time, but no indication of any settlement demand made, found insufficient to demonstrate the $75,000 jurisdictional requirement was met); Alexander v Volume Transportation, Inc., No. 19-330, 2019 WL 6501507 (M.D. La. Nov. 8, 2019) (medical records indicating that the plaintiff suffered from an L2-3 herniated disc and an L3-4 posterior bulging disc, was recommended for epidural steroid injection, was diagnosed with leg and hand radiculopathy, incurred medical expenses of $6,006.60 at the time of removal, but no evidence of multiple herniated discs, that surgery was recommended or that the plaintiff had made a significant settlement demand found insufficient to satisfy the $75,000 amount in controversy requirement).

And to the extent that the instant matter, as distinguished from the cases cited above, does involve a settlement demand, the Court is persuaded by the cases cited by Defendants for the assertion that while it constitutes some evidence that the plaintiff seeks more than $75,000, a settlement demand is not dispositive or determinative of the amount in controversy. Wilcox v. Cedar Point, Inc., No. 3:12-cv-2103, 2013 WL 4460144, at *2 (N.D. Ohio Jan. 3, 2013). See May v. Wal-Mart Stores, Inc., 751 F. Supp. 2d 946, 949 (E.D. Ky. 2010); Smith v. Phillips & Jordan, Inc., No. 10–134–ART, 2011 WL 250435, at *2 (E.D. Ky. Jan. 24, 2011).

Indeed, although the CAT scan documented or revealed a focal central disc herniation at C3-4 indenting the ventral thecal sac, in Dr. Stickney’s IME report, his opinion that Plaintiff’s herniations at C3-4 and C6-7 “have now become chronic and permanent over twenty four months since the injury” and therefore, “are now considered permanent and substantial” was based upon the fact that it had been over twenty-four months since the injury, and therefore, “these herniations have had sufficient time to resorb and heal.” In other words, because they had not resorbed and healed over the more than twenty-four month period of time since the accident, they were considered permanent and substantial, indicating that if they had resorbed and healed, they would not be permanent and substantial.

III. CONCLUSION
For the reasons set forth above, the Court finds that Defendants timely removed the instant matter to federal court. Accordingly, Plaintiff’s Motion is DENIED.

IT IS SO ORDERED.
s/Pamela A. Barker

PAMELA A. BARKER

Date: March 29, 2021 U. S. DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 1176769

Footnotes

1
As the Court explained in Terek v. Finkbiner, No. 3:13-cv-1381, 2015 WL 5542535, at *3 (N.D. Ohio Sept. 18, 2015):
“Because R.C. § 2315.21 does not define malice, the Supreme Court of Ohio applies the definition of actual malice set forth in Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), to punitive-damage claims. Malone v. Courtyard by Marriott Ltd. Partnership, 74 Ohio St.3d 440, 659 N.E.2d 1242 (1996). Thus, for purposes of punitive damages, malice is ‘(1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.’ Preston, 32 Ohio St.3d at 334, 512 N.E.2d 1174. A party seeking punitive damages bears the burden of proving malice with clear and convincing evidence. R.C. § 2315.21(D)(1)(4).”