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Gourgue v. Red Lobster Restaurant

March 26, 2008

SHAWNA GOURGUE AND VICTOR GOURGUE, PLAINTIFFS,
v.
RED LOBSTER RESTAURANT, DEFENDANTS.



The opinion of the court was delivered by: Trager, District Judge

MEMORANDUM AND ORDER

On September 5, 2006, plaintiffs, Shawna and Victor Gourgue, filed a complaint in New York Supreme Court against defendant, Red Lobster Restaurant, alleging negligence in connection with a slip and fall. Defendant removed the action to this court, and plaintiffs have moved to have it remanded back to state court arguing that defendant's removal was untimely. Plaintiffs' motion to remand presents the question of when defendant should have known that the case was removable. For the reasons set forth below, plaintiffs' motion to remand is denied.

Background

Plaintiffs allege that on July 15, 2006, Ms. Gourgue slipped and fell at a Red Lobster Restaurant because of Red Lobster's negligence. Compl. at ¶¶ 4-5. Her fall caused physical and mental injuries and prevented her from working for one week.

Pls.' Verified Bill of Particulars ("Pls.' Bill") at 10, 16. Mr. Gourgue claims loss of consortium based on his wife's fall. Id. at 24.

On August 18, 2006, prior to filing the complaint, plaintiffs' counsel sent a letter to Liberty Mutual, defendant's liability insurer, requesting information on defendant's coverage. The letter was received by a Liberty Mutual claims adjuster.

On September 5, 2006, the plaintiffs commenced their action in the Supreme Court of the State of New York. As required by New York law, plaintiffs' complaint does not specify the amount of damages they are seeking. See N.Y. C.P.L.R. § 3017(c). On November 1, 2006, plaintiffs served their complaint on the manager of the Red Lobster restaurant where the incident occurred. Pls.' Br. Ex. 1.

On December 1, 2006, plaintiffs' counsel sent a letter to Liberty Mutual requesting that the insurance company remit insurance payment of $2,675 to Mrs. Gourgue's dentist for treatment required after her accident. Pls.' Reply Ex. 2.

On January 8, 2007, plaintiffs' counsel sent another letter to Liberty Mutual along with the summons, complaint, and affidavit of service upon the Red Lobster manager. This letter stated that the defendant had not answered the complaint and requested that Liberty Mutual assign counsel to answer on behalf of the defendant. The letter also stated that if an answer was not immediately received plaintiffs would move for a default judgment of $1,000,000. The letter was received by certified mail and signed for at Liberty Mutual on January 12, 2007. Pls.' Br. Ex. 2. Plaintiffs claim that this letter, even though it was sent to Liberty Mutual, should have provided defendant with sufficient information to ascertain that the case was removable to federal court. Plaintiffs have not claimed that defendant received this letter, nor that Liberty Mutual was defendant's agent for the purpose of receiving service.

Defendant alleges that on January 18, 2007, it served plaintiffs with a request for a supplemental demand to provide the specific damages amount they were seeking, and that plaintiffs did not respond. Def.'s Affirmation in Opp'n ("Def.s' Opp'n") at ¶ 5.

On February 14, 2007, defendant filed an answer denying plaintiffs' allegations, along with a demand for a bill of particulars asking plaintiffs to provide more information regarding their injuries, including the specific amounts sought in medical, loss of earnings, and other damages. Def.'s Answer and Demand for Bill of Verified Particulars.

On July 17, 2007, the plaintiffs filed their Verified Bill of Particulars, asking for $10,000 in medical expenses, an unspecified amount in lost wages, and making a supplemental demand of $1,000,000. Pls.' Bill at ¶¶ 22-25. Defendant claims that prior to receiving the bill of particulars it could not have ascertained that the case was removable to federal court.

On July 23, 2007 -- six days after receiving the bill of particulars, but more than six months after the plaintiffs notified Liberty Mutual that they might seek around $1,000,000 -- defendant filed a notice of removal based on 28 U.S.C. § 1332, which gives federal courts jurisdiction over cases between citizens of different states where the amount in controversy exceeds $75,000. Def.'s Notice of Removal ¶¶ 1-3. On August 20, 2007, plaintiffs moved to remand the case back to state court, claiming that defendant's notice of removal was untimely. The timeliness of the removal hinges on when the thirty-day removal clock started to run. Plaintiffs argue that the clock started to run on January 12, 2007, when Liberty Mutual received ...


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