United States District Court, E.D. Kentucky
JENNIFER CAROL MARSHALL, individually and as EXECUTRIX of the estate of KENNETH MARSHALL, Plaintiff,
RMH FRANCHISE HOLDINGS, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
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.
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.
Factual and Procedural Background
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].
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.].
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].
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].
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
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.
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
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.
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 ...