KCH Transportation, Inc. v. AG Production Services, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KCH TRANSPORTATION, INC., Plaintiff, v. CIVIL ACTION FILE NO. 1:24-CV-1211-TWT AG PRODUCTION SERVICES, INC., Defendant. OPINION AND ORDER This is a breach of contract action. It is before the Court on the Plaintiff KCH Transportation, Inc.’s Motion to Remand to State Court [Doc. 5]. For the reasons set forth below, the Plaintiff’s Motion to Remand to State Court [Doc. 5] is GRANTED. I. Background Plaintiff KCH Transportation, Inc. (“KCH”) filed suit in state court against Defendant AG Production Services, Inc. seeking to recover unpaid invoices for services that KCH rendered as a freight broker. (Compl. [Doc. 1-1] ¶ 1 ). According to the Plaintiff, it was hired by the Defendant to broker shipments across the United States, and it did so on an open account and with the expectation of payment. ( ¶¶ 5-6). The Plaintiff alleged that, as of the time the suit was filed, the Defendant owed $139,798 plus interest. ( ¶¶ 7-10). The complaint was filed in state court on December 22, 2023. (Compl. at 1). It is unclear when the Defendant was served with the Complaint, but the Plaintiff asserts that service was made on February 7, 2024. (Mot. to Remand, at 2). The Plaintiff also asserts that it consented to an extension of time for the Defendant to answer the Complaint through and including March 19, 2024. ( ). Instead, the Defendant removed the action to this Court on that date and moved to dismiss for lack of personal jurisdiction the following day. On March 29, 2024, the Plaintiff filed the Motion to Remand that is presently before the Court. The Defendant did not respond to the Motion. II. Legal Standards Federal courts are courts of limited jurisdiction; they may only hear cases that the Constitution and Congress have authorized them to hear. , 511 U.S. 375, 377 (1994). An action originally brought in state court may be removed by a defendant to federal court when the action satisfies the constitutional and statutory requirements for original federal jurisdiction. 28 U.S.C. § 1441 . Because of the limited authority of federal courts, “removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” , 31 F.3d 1092, 1095 (11th Cir. 1994). When no federal question exists, diversity jurisdiction can be invoked under 28 U.S.C. 1332(a) where complete diversity exists among the parties and [2] the amount in controversy exceeds $75,000. “[I]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.” , 243 F.3d 1277 , 1281 n.5 (11th Cir. 2001). In determining whether the removing party has carried that burden, the district court has before it only the limited universe of evidence available when the motion to remand is filed–i.e., the notice of removal and accompanying documents. If that evidence is insufficient to establish that removal was proper or that jurisdiction was present, neither the defendants nor the court may speculate in an attempt to make up for the notice’s failings. , 483 F.3d 1184, 1214-1215 (11th Cir. 2007). III. Discussion The Plaintiff argues that remand is warranted because 28 U.S.C. § 1446 (b) requires a notice of removal to be filed within 30 days after service of the complaint on the Defendant and the Defendant failed to timely file the notice of removal here. (Pl.’s Mot. to Remand, at 2-3). The Plaintiff also contends that it promptly sought remand pursuant to 28 U.S.C. § 1447 (c). ( at 3-4). The Defendant has not filed a response in opposition to the Motion to Remand. Section 1446(b) states that the notice of removal “ be filed within 30 days after receipt by the defendant, through service or otherwise” of the complaint. 28 U.S.C. § 1446 (b) (emphasis added). The Court is obligated to strictly construe the removal statute, , 31 F.3d at 1095 , and the language “shall” is not permissive. , 97 F. 3 Supp. 2d 1148, 1151 (M.D. Fla. 2000). Therefore, because the Defendant has not opposed the Plaintiffs allegations that the notice of removal was not timely filed, the Court must grant the Motion to Remand. Burns, 31 F.3d at 1095 (“[Wlhere plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.”). IV. Conclusion For the foregoing reasons, the Plaintiffs Motion to Remand to State Court [Doc. 5] is GRANTED. In light of the Court’s decision to remand, the Court declines to rule on the Defendant’s pending Motions to Dismiss [Docs. 2, 8]. The Clerk is directed to remand this action to the State Court of Fulton County. SO ORDERED, this 7th day of October, 2024. A harecre Fhe THOMAS W. THRASH, JR. United States District Judge