United States District Court, D. Delaware
MELVIN A. CHUPANY, Plaintiff,
LEE A. STROUP and SAVAGE SERVICES CORPORATION, Defendants.
REPORT AND RECOMMENDATION 
R. Fallon, United States Magistrate Judge.
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
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)
Facts and Procedural History
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.
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. (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 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)
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)
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
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).
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 ...