Southern District Refuses to Remand Unremovable Case

November 2, 2016

On September 21, 2016, a District Judge in the Southern District of Florida denied a plaintiff’s motion to remand a case removed from state court, despite finding a valid basis for remand. In Goldstein v. GFS Market Realty, Four, LLC, the plaintiff filed a tort action against GFS Market Realty Four, LLC based upon a slip-and-fall injury he suffered in the defendant’s supermarket. After nearly a year of litigation, the defendant filed a notice of removal, thereby removing the case to federal court, based upon diversity of citizenship, which requires that the parties be of differing citizenship and that the amount in controversy exceeds $75,000. Goldstein filed a motion to remand, arguing that: 1) the court lacked subject matter jurisdiction; 2) the removal was untimely, and 3) the defendant waived the right to remove the case.

The Court considered each basis in turn. In terms of subject matter jurisdiction, the Court found the parties to be of diverse citizenship. In addition, the Court held that the second basis for jurisdiction, the amount in controversy, was satisfied based upon medical records that the defendant obtained from third-party medical providers via subpoena.

The Court then rejected Goldstein’s argument that the removal was untimely. The removal statute prohibits the removal of cases more than one year after the case is initially filed, even if the case only becomes removable after the expiration of the one-year period. Goldstein argued that his pre-suit demands for $250,000 and $500,000 satisfied the amount in controversy requirement, such that the one-year clock began ticking on receipt of the first pre-suit demand. The Court rejected that argument, noting that the removal statute itself requires that the documentation establishing removability be received after the case is initially filed.

The Court then took a detour, considering whether the evidence which established removability, Goldstein’s medical records, which were obtained by third-party subpoena, could be considered by the Court. The Court held that evidence of removability must be received from the plaintiff in order to be considered, explaining:

Although the Defendants have unequivocally established that the amount in controversy in this litigation exceeds the jurisdictional threshold, it does not change the fact that, at the time they removed this case, they had not received any document from Goldstein that indicated that the case was removable.

That being said, the Court noted that the removal statute requires that a motion to remand for any basis other than lack of subject matter jurisdiction must be raised within thirty days of removal. Since Goldstein did not raise the procedural defect at all, much less within thirty days, the Court held that he waived his right to remand on that basis.

The Court then used that conclusion as the basis to reject Goldstein’s waiver argument. A waiver is the intentional relinquishment of a known right. However, GFS never knew it had the right to remove the case because the evidence establishing removability did not come from Goldstein.

Goldstein is truly a remarkable case. The Court found an independent basis to support Goldstein’s motion, yet refused to apply it because Goldstein failed to raise it.

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