In an interesting trucking case, Cameron v. Teeberry Logistics, 920 F. Supp. 2d 1309 (2013 N.D. Ga.) the district court permitted removal of a case filed in Troup State Court over a year after it was filed alleging that the amount in controversy was less than $50,000. Through discovery it was revealed that the plaintiff was claiming medical expenses of $62,432.45, and that her doctor was recommending back surgery. Subsequently the medical total expense increased to $91,413.75. The case was set for mediation, and prior to mediation plaintiff’s counsel demanded $575,000 to settle. The demand for $575,000 was made one year and four days after the lawsuit was filed. Mediation failed and the defendants removed the case to federal court, more than one year after it was commenced. Plaintiff moved to remand, arguing that the removal came too late under 28 U.S.C. § 1446(b)(3). Under that statute, the defendant must file notice of removal within 30 days of when he first ascertains that the action is removable. To remove a case that was not initially removable but later becomes removal, the defendant has to file the notice no “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).
The District Court found that the plaintiff acted in bad faith and allowed the removal to stand:
“First, Cameron specifically pled that this case was not removable, knowing that her pleading is “entitled to deference” by a district court and has “important legal consequences” regarding federal removal jurisdiction. Burns, 31 F.3d at 1095. Second, she failed to amend her complaint, or otherwise notify Defendants that she considered the amount in controversy to be over $75,000, therefore allowing Defendants to continue to rely upon her representation that she was seeking no more than $50,000 in damages. Third, she sent the time-limited demand letter exactly one year and four days after commencement of this suit, thus ensuring that the one-year limitation of § 1446(c) would be a potential hurdle to Defendants’ removal. Taken together, these actions show bad faith in preventing Defendants from removing this case. Cf. Bolton v. U.S. Nursing Corp., No. C 12-4466LB, 2012 U.S. Dist. LEXIS 152387, 2012 WL 5269738, at *5 (N.D. Cal. Oct. 23, 2012) (“[A] plaintiff’s refusal to stipulate to damages less than the amount in controversy is not evidence of bad faith and forum shopping.”). Thus, despite the one-year time limitation of § 1446(c), Defendants’ removal is proper.”
Nice try by plaintiff’s counsel, but it goest to show that you can’t have your cake and eat it too!