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Repco, Inc. v. Flexan, LLC

United States District Court, D. Minnesota

March 13, 2019

Repco Inc. d/b/a Peterson Enterprises, Plaintiff,
v.
Flexan, LLC, Defendant.

          Jeffrey J. Bouslog, Esq., Peter D. Stiteler, Esq. and Fox Rothschild, LLP,, counsel for plaintiff.

          Charles N. Nauen, Esq., Rachel Ann Kitze Collins, Esq. and Lockridge Grindal Nauen, PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401; Brittany Whitesell Biles, Esq. and Stein Mitchell Beate & Missner LLP, counsel for defendant.

          ORDER

          DAVID S. DOTY, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the court upon the motion to remand by plaintiff Repco, Inc. and the motion to dismiss by defendant Flexan, LLC. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion to remand and denies the motion to dismiss as moot.

         BACKGROUND

         This unfair competition dispute arises out Flexan's termination of Repco as its regional sales representative, and Flexan's alleged interference in Repco's business relationship with a third-party, Qure. Flexan is an Illinois company that manufactures silicone and thermoplastic medical devices. Removal Pet. ¶ 1. Repco is a Minnesota corporation, specializing in medical device sales. Id. ¶ 2.

         On July 23, 2018, Repco served the complaint on Flexan. Id. ¶ 7. The complaint states that Repco seeks more than $50, 000 in damages.[1] Compl. at 7. On August 15, 2018, Repco sent Flexan a demand letter representing that it suffered over $3, 000, 000 in damages. Bouslog Decl. Ex. 5.

         On November 16, 2018, Repco filed the complaint in Hennepin County District Court. Removal Pet. ¶ 9. On December 28, 2018, Repco served its initial disclosures, again representing that it suffered over $3, 000, 000 in damages. Id. ¶ 10; see also Id. Ex. 2 at 3. On January 7, 2019, Flexan removed the case. Id. Repco now moves for remand, arguing that removal was untimely.

         The parties do not dispute that they are diverse and that the amount in controversy exceeds $75, 000. The sole issue is whether Flexan timely removed within the thirty-day period prescribed by 28 U.S.C. § 1446(b). Because the complaint does not expressly seek more than $75, 000 in damages, the question is whether Flexan should have known that removal was possible within the removal period. Repco argues that the removal period began when Flexan received the demand letter in August 2018. Flexan responds that the removal period did not commence until Repco served its initial disclosures in December 2018.

         DISCUSSION

         Federal courts are courts of limited jurisdiction, and subject matter jurisdiction is a threshold inquiry for all actions. Thomas v. Basham, 931 F.2d 521, 522 (8th Cir. 1991). Diversity jurisdiction under 28 U.S.C. § 1332 requires that the matter in controversy exceed $75, 000, exclusive of interest and costs, and that complete diversity of citizenship exist between the parties. A party may timely remove a civil action on the basis of diversity jurisdiction. 28 U.S.C. § 1441(b).

         The relevant deadline for removal is set forth in 28 U.S.C. § 1446(b)(3):

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 or other paper from which it may first be ascertained that the case is one which is or has become removable ....

         A party opposing removal may bring a motion requesting that the federal court remand the case back to state court. 28 U.S.C. § 1447(c). On a motion to remand, the party seeking removal bears the burden of establishing federal jurisdiction. In re Bus. Men'sAssur. Co. of Am., 992 F.2d 181, 183 ...


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