1Ortega originally filed his complaint against "Foley's Department Stores,

L.P. and/or the Entity that Employed Robert Ortega from September 1, 1995 though

August 30, 2002." However, on December 27, 2004, the parties stipulated that

Foley's Department Stores was misnamed as a defendant and that the actual

intended defendant was The May Department Stores Company d/b/a Foley's. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT ORTEGA § 

 § 

VS. § CIVIL ACTION NO. 4:04-CV-751-Y

 §

FOLEY'S DEPARTMENT STORES, §

L.P., ET AL. §

 ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

Pending before the Court is plaintiff Robert Ortega's Motion

To Remand, filed November 12, 2004. After careful consideration of

the motion, response, reply, and applicable authorities, the Court

concludes that Ortega's motion should be GRANTED. 

I. RELEVANT BACKGROUND

Ortega was employed by Foley's Department Stores. (Pl's.

Original Pet. at 1.) On March 30, 2004, plaintiff Robert Ortega filed

suit in state court against The May Department Stores Company d/b/a/

Foley's,1

 a New York corporation with its principal place of business

in Missouri, and Cathy Elsbree, an individual residing in the state

of Texas. Ortega claimed that the defendants violated sections 21.051

and 21.055 of the Texas Labor Code by discriminating and retaliating

against him because his race and national origin (Hispanic). (Pl's.

Original Pet. at 3.) He sought damages for past and future lost

 

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2Although the discovery responses indicate that they were served on

September 1, the defendant claims that they were not actually served until

September 8. Thus, the Court will use September 8 as the date of service.

(Defs.' Memo. in Opposition to Motion to Remand at 4.)

3Although Ortega, in his response, incorrectly stated that the amount he

sought for the difference in his current salary and his past salary was $15,000,

it is obvious that he meant $19,000 as $63,000 minus $44,000 equals $19,000.

4With respect to attorneys' fees, Ortega indicated that one of his

attorneys charged $400 per hour and would spend approximately 15 hours of time

on this suit and that his other attorney charged $250 per hour and would spend

approximately 100 hours of time on this suit. Consequently, at this point,

Ortega was seeking over $30,000 in attorneys' fees. (($400 x 15) + ($250 x 100)

= $31,000.)

2

wages, loss of earning capacity, lost benefits, inconvenience, mental

anguish, mental pain and suffering and loss of enjoyment of life.

(Pl's. Original Pet. at 4.) In addition, the plaintiff sought damages

for loss of self-esteem, loss of past and present career advancement,

punitive damages, and attorney's fees. (Id. at 4-5.) 

On September 8,2 Ortega served his answers to the defendants'

First Set of Interrogatories. In his answers, Ortega stated that

he sought past and future damages for: (1) loss of profit sharing,

(2) loss of interest money, (3) loss of retirement, (4) lost wages,

(5) loss of earning capacity, (6) lost benefits, (7) inconvenience,

(8) mental anguish, (9) mental pain and suffering, (10) loss of

enjoyment of life, (11) loss of self-esteem, (12) punitive damages,

and (13) $19,0003 for the difference in his salary at his new job

and his salary at Foleys. In addition, also on September 8, Ortega

served supplemental responses on the defendants in which Ortega

indicated that he was also seeking economic damages for the five weeks

in which he was unemployed and attorney's fees in excess of $30,000.4

 

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3

Thereafter, on September 22, Ortega served a supplemental discovery

response on the defendants that specifically stated that Ortega sought

compensatory damages for past and future mental anguish, loss of

enjoyment of life, mental pain and suffering, and punitive damages

in the amount of $250,000. 

On October 13, 2004, the defendants removed the case to this

Court, claiming that the Court had diversity jurisdiction to hear

the case because defendant Elsbree had been fraudulently joined.

(Defs.' Notice of Removal at 2.) In his motion to remand, Ortega

claims that the case should be remanded because: (1) Elsbree was not

fraudulently joined, and, consequently, the Court does not have

jurisdiction to hear the case, and 2) the defendants did not timely

remove the case to this Court. (Pl's. Mot. for Remand at 2.) 

II. ANALYSIS

The initial issue before the Court is whether the defendants

timely filed their notice of removal. The time constraints for

removal are set forth in 28 U.S.C. § 1446(b), which states:

The notice of removal of a civil action or proceeding

shall be filed within thirty days after the receipt by

defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon

which such action or proceeding is based, or within thirty

days after the service of summons upon the defendant if

such initial pleading has then been filed in court and is

not required to be served on defendant, whichever period

is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within thirty

days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order

 

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5Removal on the basis of diversity of citizenship is proper where the case

involves citizens of different states and the amount in controversy, exclusive

of interest and costs, exceeds $75,000. See 28 U.S.C.A. § 1332(a) (West 2003).

4

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.A. § 1446(b) (West 2003) (emphasis added). With respect

to triggering commencement of the removal period after the initial

pleading is filed, the information supporting removal in the “other

paper” must be “unequivocally clear and certain” to start the time

limit running. Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th

Cir. 2002). Discovery responses, formal or informal communications

between attorneys, and statements made in court can be “other paper”

that start the thirty-day removal period. See, e.g., Stiles v. Barnes

Group, Inc., No. 3:01-CV-2750-H, 2002 WL 1298734, at *3 fn.4 (N.D.

Tex. June 11, 2002); Hines v. AC and S, Inc., 128 F. Supp. 2d 1003,

1006 (N.D. Tex. 2001); Polk v. Sentry Ins., 129 F. Supp. 2d 975, 978

(S.D. Miss. 2000); Leboeuf v. Texaco, 9 F. Supp. 2d 661, 665 (E.D.

La. 1998) (stating that interrogatory responses constitute “other

paper” commencing thirty-day removal period). 

Ortega argues that the defendants' October 13, 2004, notice of

removal was not timely because the defendants had notice by September

8, 2004, at the very latest, that the case was removable based on

diversity jurisdiction.5

 However, the defendants contend that, until

they received Ortega's supplemental discovery responses on September

22, they were unable to ascertain that the amount in controversy

exceeded $75,000, and, consequently, that the case was removable.

 

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6In White v. FCI USA, Inc., 319 F.3d 672, 675, (5th Cir. 2003), the United

States Court of Appeals for the Fifth Circuit, in analyzing whether the amountin-controversy requirement was met when the defendant removed the case, affirmed

the district court's findings that "it was 'more probable than not' that the

lengthy list of compensatory and punitive damages sought . . . when combined with

attorney's fees, would exceed $75,000." In this case, the plaintiff brought suit

against her former employer for wrongful termination. In the complaint, the

plaintiff sought monetary relief for punitive damages, attorney's fees, prejudgment interest, court costs, and compensatory damages for lost pay, lost

fringe benefits, front pay, loss of wage earning capacity, harm to her credit and

credit reputation, mental anguish and emotional distress. The district court

denied the plaintiff's motion to remand and granted summary judgment to the

defendant. The plaintiff appealed and the Fifth Circuit affirmed the district

court's decision denying the plaintiff's motion to remand. 

7Because the Court concludes that the defendants' removal was not timely,

it will not address the issue of fraudulent joinder. 

5

After reviewing the parties' arguments, the evidence, and the

relevant case law, the Court concludes that the defendants did not

timely remove this case. Even assuming that it was not facially

apparent from Ortega's original petition that the amount in

controversy exceeded $75,000, the defendants received "other paper"

from which they should have ascertained that the case was removable

on September 8, 2004, when Ortega filed his initial and supplemental

discovery responses that set out a lengthy laundry list of the damages

that he sought as well specific claims for $19,000 in lost wages and

over $30,000 in attorneys' fees. See, e.g., White v. FCI USA, Inc.,

319 F.3d 672, 675 (5th Cir. 2003).6

 

Because the defendants failed to file their notice of removal

until October 13, 2004, over thirty days from the date that the

defendants should have ascertained that the amount in controversy

exceeded $75,000, the defendants did not timely remove the cause to

this Court. Thus, this case must be remanded to state court.7 

 

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6

III. CONCLUSION

Based on the foregoing, it is ORDERED that Plaintiff's Motion

To Remand is GRANTED. The above-styled and numbered cause is REMANDED

in its entirety to the 67th Judicial District Court, Tarrant County,

Texas, cause no. 067-204928-04. 

SIGNED May 2, 2005.

TRM/kll 

 

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