United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
matter is before the Court upon Plaintiff Emma Goins'
Motion to Remand. [R. 6.] This action was initiated in Perry
Circuit Court on October 22, 2018. [R. 1.] Defendant Adecco
USA, Inc. removed to this Court when, in response to an
interrogatory, Ms. Goins indicated she sought more than $75,
000 in damages. Now, Ms. Goins seeks to remand on the grounds
that Adecco's notice of removal was untimely, and Adecco
waived its right to remand by consenting to the state
court's jurisdiction. For the following reasons, Ms.
Goins' Motion to Remand [R. 6] is DENIED.
Emma Goins claims she sustained injuries while visiting
Buckhorn Lake State Resort Park in Perry County, Kentucky on
October 21, 2017. [R. 1-1 at ¶¶ 5-8.] At the time,
Defendant Adecco USA, Inc. was contracted by the Commonwealth
of Kentucky to provide maintenance for the Department of
Parks. [R. 1-1 at ¶ 2.] Ms. Goins contends that Adecco
was negligent in its responsibilities which caused a
dangerous condition to exist on the stairs at the park, which
caused her to fall. [R. 1-1 at ¶¶5-8.] The
complaint did not identify a specific dollar amount of
damages, but stated “[a]ll damages complained of by the
Plaintiff exceed the jurisdictional prerequisites of this
Court.” [R. 1-1 at ¶ 4.]
Perry Circuit Court, Adecco filed its answer and subsequently
moved to dismiss the action as barred by the applicable
statute of limitations. Kentucky has a one-year statute of
limitations on personal injury actions. K.R.S. §
413.140(1)(a). Ms. Goins was injured on October 21, 2017 but
did not file suit until October 22, 2018. [R. 1-1.] However,
the state court denied Adecco's motion to dismiss,
finding that October 21, 2018 fell on a Sunday, and therefore
the statute did not run until the following day. Thus, the
state court found Ms. Goins' complaint was timely filed
on October 22, 2018.
that ruling, Adecco served written discovery requests upon
Ms. Goins, which included a request for admission that the
damages sought exceeded $75, 000, exclusive of interest and
costs. [R. 7 at 3.] Ms. Goins responded to the discovery
request on May 2, 2019 and revealed that, at that time, her
expenses totaled $84, 873.52. [R. 1-1 at 24.].
Adecco filed its notice of removal on May 30, 2019. [R. 1.]
Thus, the parties agree that there is complete diversity
between them, and that the amount in controversy requirement
for diversity jurisdiction is met. [R. 1-1 at 24; R. 6 at 1.]
Nevertheless, Ms. Goins argues that remand is proper on the
grounds that Adecco's notice of removal was filed more
than thirty days after service of the complaint, and because
Adecco consented to state court jurisdiction by serving its
answer to the complaint, filing its motion to dismiss, and
beginning discovery. [R. 6.]
defendant may remove a civil action brought in state court to
federal court only if the action is one over which the
federal court could have exercised original jurisdiction.
See 28 U.S.C. §§ 1441, 1446. This Court
has original “diversity” jurisdiction over all
civil actions when “the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs, and the dispute is between” those who are
“citizens of different states.” 28 U.S.C. §
1332(a)(1). In making this assessment, the Court considers
whether federal jurisdiction existed at the time of removal.
See Everett v. Verizon Wireless, Inc., 460 F.3d 818,
822 (6th Cir. 2006). Because federal courts are courts of
limited jurisdiction, “the removal statute should be
strictly construed, ” and any doubts should be resolved
in favor of remanding the case to state court. Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006);
see also Cole, 728 F.Supp. at 1307 (citations
omitted). Finally, as this Court has noted before,
“when the complaint is silent as to the amount in
controversy, the defendant should engage in discovery on that
issue before removing the case.” Coppola v.
Wal-Mart Stores East, LP, 2016 U.S. Dist. LEXIS 113599,
*2 (E.D. Ky. Aug. 25, 2016).
Goins contends Adecco's notice of removal was untimely,
because it was filed more than thirty days after Adecco was
served with the complaint. [R.6 at 2.] By her calculations,
Adecco had until November 29, 2018 to file its notice in
order to comply with § 1446. Id.; see
Fed. R. Civ. P. 6(a); 28 U.S.C. § 1446(b)(1). The Court
1446 provides that “[t]he notice of removal of a civil
action shall be filed within 30 days after the receipt by the
defendant, ” with the exception that if it is not
apparent from the complaint that a case is removable, then
the defendant has thirty days from receipt “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.” 28 U.S.C. §
1446(b)(3). Kentucky's rules of civil procedure prohibit
plaintiffs from “recit[ing] any sum as alleged damages
other than an allegation that damages are in excess of any
minimum dollar amount necessary to establish the jurisdiction
of the court[.]” Ky. R. Civ. P. 8.01(1). In compliance
with Rule 8.01, Ms. Goins' complaint did not request a
specific sum in damages. [R. 1-1 at ¶ 9.].
of this rule, it is often difficult for defendants and this
Court to ascertain from the face of the complaint whether the
amount in controversy requirement for diversity jurisdiction
has been met. But, Rule 8.01 allows a party against whom a
claim for unliquidated damages is made to obtain information
as to the amount by use of interrogatories. See Ky.
R. Civ. P. 8.01. As this Court has stated before, “[i]n
diversity cases, the best practice is for defendants to take
advantage of state discovery procedures, and to remove to
federal court only when it becomes apparent that the
requirements of 28 U.S.C. § 1332 have been met.”
Hacker v. Aetna Life Ins. Co., 2018 U.S. Dist. LEXIS
194961, *5 (E.D. Ky. November 15, 2018); see also King v.
Household Fin. Corp. II, 593 F.Supp.2d 958 (E.D. Ky.
Jan. 16, 2009); Holland v. Buffin, 2015 U.S. Dist.
LEXIS 80242 (E.D. Ky. Jan. 16, 2015); Giffin v.
Runyons, 2011 U.S. Dist. LEXIS 122092 (E.D. Ky. Oct 21,
Adecco has done exactly what this Court has instructed
defendants to do in the past. Adecco made use of state court
discovery mechanisms to establish definitively that Ms. Goins
sought more than $75, 000 in damages. Because of
Kentucky's pleading rules, it was not until Ms. Goins
responded to Adecco's request for admission that Adecco
knew the amount in controversy exceeded $75, 000. [R. 7 at
3.] Once it was clear that the amount in controversy
requirement was met, Adecco filed its notice of removal