United States District Court, N.D. Oklahoma
AUTOMOTIVE CONSULTING RESOURCES, INC.; ROBBY HEFNER; Plaintiffs,
INTERSTATE NATIONAL DEALER SERVICES, INC., Defendant.
OPINION AND ORDER
E. DOWDELL, JUDGE
plaintiffs, Automotive Consulting Resources, Inc. (ACR), and
its principal, Robby Hefner, initiated this action in Rogers
County, Oklahoma District Court on April 25, 2016. (Doc.
2-1). The plaintiffs allege that, under a 2005 Agreement, ACR
was an independent agent for the defendant, Interstate
National Dealer Services, Inc. (Interstate). On April 22,
2016, Interstate notified the plaintiffs that Interstate
considered them in violation of the Agreement's
non-compete terms, and Interstate terminated the Agreement.
Plaintiffs brought suit in state court, asserting three
claims. In Count I, the plaintiffs seek a declaratory
judgment determining the parties' rights and obligations
under the Agreement, including plaintiffs' rights to
compete against Interstate and their alleged “continued
right to compensation for business procured by Plaintiffs on
behalf of Interstate.” (Doc. 2-1 at 4). In Count II,
plaintiffs allege that Interstate breached the Agreement, and
in Count III, plaintiffs assert a claim for quantum meruit
based on their allegation that Interstate improperly retained
the benefits of accrued compensation and commissions acquired
from the plaintiffs' work. In Counts II and III, the
plaintiffs asserted that damages were “less than $75,
000, ” such that the case was not initially removable
upon the plaintiffs' pleading.
course of the litigation in state court, Interstate served
the plaintiffs with requests for admissions regarding the
amount of damages sought by plaintiffs:
REQUEST FOR ADMISSION NO. 1: Admit that Plaintiffs' total
damages, exclusive of interest and costs, exceed $75, 000.
REQUEST FOR ADMISSION NO. 2: Admit that Plaintiffs' total
damages, exclusive of interest and costs, do not exceed $75,
(Doc. 2-18 at 1-2). On April 17, 2017, the plaintiffs
responded to each of those requests by stating that they
“are unable to respond” and arguing that the
information to calculate damages is solely in the possession
of Interstate. (See id.).
plaintiffs' refusal or inability to confirm that they are
seeking less than $75, 000 in damages, and based upon
Interstate's own analysis of the amount in controversy,
Interstate then filed a notice of removal in this Court on
April 25, 2017, which was the one year anniversary of the
commencement of this action in state court. In the notice of
removal, Interstate asserted that the Court has subject
matter jurisdiction based upon diversity of citizenship under
28 U.S.C. § 1332. Interstate asserted that the
plaintiffs are Oklahoma citizens, while Interstate is a
Delaware corporation with its principal place of business in
Georgia. Diversity of citizenship is undisputed.
seek remand based on two arguments. (See Doc. 16).
First, plaintiffs contend that Interstate's removal was
not timely. Second, plaintiffs assert that Interstate's
notice of removal did not sufficiently set forth “all
facts” that establish the requisite amount in
controversy. The Court held a hearing on the plaintiffs'
motion on June 28, 2018. At the hearing, the Court asked
whether plaintiffs seek damages in excess, or not in excess,
of the jurisdictional amount in controversy, and the
plaintiffs' counsel asserted that they are unable to
answer that question.
Timeliness of Removal
allege that Interstate's removal was untimely under 28
U.S.C. § 1446(c)(1), which provides that “a case
may not be removed [on the basis of diversity jurisdiction]
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.” The plaintiffs argue that, even though the
notice of removal was filed in this Court within one year of
the commencement of the action, the removal was not timely
because a copy of the Notice was not filed in state court
until the next day, so that the removal was rendered untimely
under 28 U.S.C. § 1446(d).
plaintiffs have confounded timeliness with the date on which
the removal is effected and the state court is thus deprived
of jurisdiction. The plaintiffs' construction of §
1446(d) is inconsistent with the express filing deadlines set
forth throughout the rest of § 1446. The requirements
for timely filing of a notice of removal are found in
subsections (a), (b), and (c), not in subsection (d).
Subsection 1446(a) describes what is generally required to
remove a case, by reference to the filing of the notice of
removal in federal court:
A defendant or defendants desiring to remove any civil action
from a State court shall file in the district court of
the United States for the district and division within which
such action is pending a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure
and containing a short and plain statement of the grounds for
removal, together with a copy of ...