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Chupany v. Stroup

United States District Court, D. Delaware

August 9, 2019



          Sherry R. Fallon, United States Magistrate Judge.


         Presently before the court in this personal injury action is a motion to remand the case to the Superior Court of Delaware and to award costs and attorney's fees filed by plaintiff Melvin A. Chupany ("Mr. Chupany"). (D.I. 4) Defendants, Lee A. Stroup ("Mr. Stroup") and Savage Services Corporation ("Savage Services") (collectively, "defendants"), oppose the motion. (D.I. 6) For the following reasons, I recommend DENYING plaintiffs motion.[2]


         a. Parties

         Plaintiff is a resident of Delaware. (D.I. 4, Ex. 1 at ¶ 1) Mr. Stroup is a resident of Pennsylvania. (Id. at ¶ 2) Savage Services is a Utah corporation with a principal place of business in Midvale, Utah. (D.I. 6, Ex. H; Ex. I; D.I. 1 at 1; D.I. 4, Ex. 1 at ¶ 3)

         b. Facts and Procedural History

         On June 21, 2018, plaintiff filed this personal injury action against Mr. Stroup and Savage Services in the Superior Court of Delaware, asserting claims arising from a motor vehicle collision on December 12, 2016. (D.I. 4, Ex. 1) Savage Services was served on July 12, 2018 and Mr. Stroup was served on February 23, 2019. (D.I. 4, Ex. 3; Ex. 4) The parties engaged in settlement negotiations until August 15, 2018. (D.I. 6, Ex. A) At that time, plaintiff indicated that he was unsure whether he would increase his damages demand. (Id.)

         On January 3, 2019, plaintiff provided defendants with medical records, two of which are at issue here: (1) a report by Dr. Mark Eskander ("Dr. Eskander"), an orthopedic spine surgeon, following plaintiffs appointment on September 26, 2018, and (2) a report by Dr. John Rowlands ("Dr. Rowlands") following plaintiffs appointment on October 23, 2018.[3] (D.I. 4 at 2, 4; D.I. 7, Ex. 1; Ex. 2) On September 26, 2018, Dr. Eskander diagnosed plaintiff with cervicalgia, cervical radiculopathy, and "[o]ther cervical disc displacement at ¶ 5-C6 level." (D.I. 7, Ex. 1) Under the "Plan" section of the report, Dr. Eskander stated that the "MRI reveals C5-6 herniation" and recommended that plaintiff visit Dr. Rowlands. (Id.) Furthermore, Dr. Eskander recommended that plaintiff attend a follow-up appointment with him four weeks after plaintiffs injection. (Id.) Additionally, the report states "[s]urgical plan: ACDF[4] C5-6." (Id.) On October 23, 2018, plaintiff visited Dr. Rowlands, who subsequently reported that he "will consider spine surgery referral if pain persists despite interventions or new concerning symptoms develop." (D.I. 7, Ex. 2)

         Defendants received plaintiffs interrogatory answers on March 25, 2019, which noted that plaintiff was scheduled to undergo cervical spine surgery on April 17, 2019. (D.I. 6, Ex. C at 5) On April 16, 2019, defendants removed the action to this court pursuant to 28 U.S.C. § 1332, based upon diversity of citizenship. (D.I. 1) On April 23, 2019, plaintiff filed the present motion to remand, asserting that defendants' notice of removal was untimely and failed to comply with 28 U.S.C. § 1446(b)(2)(B). (D.I. 4)


         To remove a case to federal district court, a party must establish that the district court has original jurisdiction by either a federal question or diversity of citizenship. See 28 U.S.C. §§ 1331, 1332, 1441. If jurisdiction is based on diversity of citizenship, complete diversity must exist and the amount in controversy must exceed $75, 000. See 28 U.S.C. § 1332(a). "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Kline v. Security Guards, Inc., 386 F.3d 246, 251 (3d Cir. 2004) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).

         Section 1446(b) dictates the timeliness of removal, providing that "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the 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." 28 U.S.C. § 1446(b)(1). If the basis for removal is not set forth in the initial pleading, however, a defendant must remove within thirty days after receiving "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." 28 U.S.C. § 1446(b)(3). "If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an 'other paper' under subsection (b)(3)." 28 U.S.C. § 1446(c)(3)(A).

         A federal court must remand a removed case "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The Third Circuit Court of Appeals stated that it "is settled that the removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch & Signal Div.,809 F.2d 1006, 1010 (3d Cir. 1987) (citing Abels v. State Farm Fire & Casualty Co.,770 F.2d 26, 29 (3d Cir. 1985)). The party seeking removal bears ...

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