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Marshall v. RMH Franchise Holdings, Inc.

United States District Court, E.D. Kentucky

August 16, 2019

JENNIFER CAROL MARSHALL, individually and as EXECUTRIX of the estate of KENNETH MARSHALL, Plaintiff,
v.
RMH FRANCHISE HOLDINGS, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge

         Time is not always on the side of parties in litigation. Instead, time is often of the essence and parties who sit on their rights often do so at their own peril.

         Here, the Defendants removed this action to federal court over three months after the complaint was filed in state court even though it was clear from the complaint that the amount in controversy exceeded $75, 000. Additionally, Defendants' actions in state court constituted a constructive waiver of removal to federal court. As a result, Plaintiff's motion to remand [DE 11] is GRANTED and this action is REMANDED to the Fayette Circuit Court.

         I. Factual and Procedural Background

         Plaintiff Jennifer Carol Marshall's husband was seriously injured as a result of a fall outside of an Applebee's restaurant.[DE 1-1 at 3-4, Pg ID 7-8]. Plaintiff claims that Defendants RMH Franchise Holdings, Inc., Fayette Place Improvements Owner, LLC, and RMH Franchise Corporation either owned, operated, or managed the premises where the Applebee's was located. [Id. at 2, Pg ID 6].

         After the Plaintiff was granted modified relief from the automatic stay afforded by the bankruptcy filing of RMH Franchise Holdings, Inc., and RMH Franchise Corporation, Plaintiff filed an action in Fayette Circuit Court on October 19, 2018. [Id.]. Plaintiff's complaint alleged counts of negligence, loss of consortium, and punitive damages arising from the injuries that Mr. Marshall allegedly incurred as a result of his fall at Applebee's. [Id.].

         The Defendants answered the complaint. Additionally, Defendant Fayette Place Improvements Owner, LLC, filed a crossclaim against RMH Franchise Holdings, Inc., and RMH Franchise Holdings Corporation for indemnification. [Id. at 31, Pg ID 35].

         Then, in January 2019, Defendants propounded interrogatories and requests for production on the Plaintiff. In response to one of those interrogatories, Plaintiff claimed that she was seeking over 2.5 million dollars in total damages. [Id. at 76, Pg ID 80].

         After Plaintiff filed her responses to Defendants' interrogatory requests, Fayette Place filed a motion to compel discovery in state court on January 30, 2019. [Id. at 121-25, Pg ID 125-29]. The motion to compel was joined by Defendants RMH Franchise Holdings and RMH Franchise Corporation. [Id. at 126-28; Pg ID 130-32].

         Then, before the state court had occasion to resolve the pending motion to compel, Defendants filed a joint notice of removal in this Court on February 7, 2019. [DE 1]. Plaintiff moved to remand this action to state court, claiming that Defendants had knowledge that the amount in controversy for removal to federal court was met when the state court complaint was filed and that, in any event, Defendants waived removal to federal court. The motion to remand has been fully briefed and is ripe for review.

         II. Analysis

         Generally, defendants may remove cases from state to federal court under 28 U.S.C. § 1441 based on diversity of citizenship jurisdiction so long as the amount in controversy exceeds $75, 000 and all the named parties are citizens of different states. 28 U.S.C. § 1332(a). Still, this right is not absolute.

         First, the removal must be made within the time limits outlined in 28 U.S.C. § 1446. Generally, removal must be made within thirty days of the defendant receiving the initial pleading setting forth the claim for relief.

         Second, the right to remove a case to federal court may be waived. Waiver may occur expressly or constructively, but waiver must be “clear and unequivocal.” Robertson ...


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