Removal — Lack of Subject Matter Jurisdiction Waived? Dilatoriness in Making Remand Motion Relevant to Court’s Decision
The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion to remand, claiming that the amount in controversy did not exceed $75,000:
Although § 1447(c) provides no time bar for remand motions challenging lack of federal subject matter jurisdiction a court may not look favorably upon a plaintiff who deliberately avoids raising the issue until over a year after the case was removed. See BEM I, LLC v. Anthropologie, Inc., 301 F.3d 548, 551 (7th Cir. 2002) ("As officers of the court, lawyers who practice in federal court have an obligation to assist the judges to keep within the boundaries fixed by the Constitution and Congress; it is precisely to impose a duty of assistance on the bar that lawyers are called "officers of the court." Lawyers also owe it to the judge and the opposing lawyer to avoid subjecting them to the burdens of a lawsuit that they know or think may eventually be set at naught, and have to be started over again in another court, because of a jurisdictional problem of which the judge and the opposing lawyer may be unaware."); see also Workman, 234 F.3d at 999-1000 ("Although challenges to the subject-matter jurisdiction of a federal court are conventionally said not to be waivable, so that such a challenge can be mounted for the first time on appeal and can indeed be made by the court itself, it is not true that waiver or forfeiture plays no role in determinations of jurisdiction.")
In the instant matter, the Court takes umbrage with the timing of Plaintiff's second Motion to Remand. Plaintiff has been aware of Defendant's claim that Plaintiff seeks damages in excess of $ 75,000.00 since the day this case was removed from state court over a year ago. Although a party can typically challenge the existence of jurisdiction at any time throughout the proceedings, whether the facts have changed or have become any clearer regarding the amount of Plaintiff's damages since the time of removal is irrelevant for the Court's consideration. The Court determines the existence of jurisdiction at the time of removal. It is possible that Plaintiff has since determined that her damages are not in excess of $ 75,000.00, but this does not change her expectancy of recovery on her claims as it existed at the time Defendant removed this case. If Plaintiff believed her claims would not exceed the jurisdictional amount from the inception of this case, common sense would lead one to object to its removal at the first opportunity. The fact that Plaintiff refused to stipulate to the amount of damages, the amount of her initial settlement demand, and the fact that she still will not conclusively state that her claims do not exceed $ 75,000.00, substantiates Defendant's good faith estimate that the jurisdictional amount in controversy was met at the time of removal, though, once again, subsequent or current value is irrelevant.
Motion to remand denied.
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