Pollock v. D R Horton Inc Gulf Coast
6:21-cv-01006
W.D. La.Sep 9, 2021Background
- Plaintiffs Justin and Anna Pollock purchased a newly built home in September 2013 and repeatedly reported water intrusion, mold, structural issues, and related health complaints for their children.
- Plaintiffs sued D.R. Horton in Louisiana state court in October 2019 seeking damages, later amending to allege (among other things) an oral repair agreement and, in a January 31, 2020 amendment, a claim for rescission of the sale.
- Plaintiffs sent a pre-removal settlement demand dated December 7, 2019 seeking $170,000 (emailed Dec. 8, 2019). The home’s purchase price was $254,900.
- Plaintiffs filed a second amended petition in March 2021 adding fraud and personal-injury claims for their minor children.
- Defendant Horton removed to federal court on April 15, 2021 (asserting diversity jurisdiction). Plaintiffs moved to remand on timeliness grounds; magistrate judge Hanna recommends granting remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under §1446(b) / one-year rule | Removal filed after one year; untimely | Removal timely or excused by plaintiff bad faith | Removal untimely; remand recommended |
| Does the Dec. 2019 settlement demand constitute “other paper” starting the 30‑day clock? | Demand does not create removability or is a sham | Demand was unequivocal and started the 30‑day clock | Demand constituted “other paper” (notice to Horton) as of Dec. 8, 2019 |
| Did the Jan. 31, 2020 first amendment (rescission claim) make the case removable? | Amendment did not justify removal timing | Rescission claim made amount-in-controversy > $75,000 | First amendment (rescission) made removability clear by Jan. 31, 2020 |
| Does the revival exception apply after the second amendment? | Second amendment did not create a new suit; revival inapplicable | Second amendment altered the action enough to revive removal right | Revival exception does not apply; second amendment arose from same nucleus of facts |
Key Cases Cited
- Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002) (burden on removing party to show federal jurisdiction and proper removal)
- Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759 (5th Cir. 2000) (pre‑removal settlement demand can be “other paper” triggering 30‑day removal window if not a sham)
- Johnson v. Heublein, Inc., 227 F.3d 236 (5th Cir. 2000) (revival exception: when an amendment creates essentially a new lawsuit)
- Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999) (removing party must show amount in controversy by preponderance when petition demands indeterminate damages)
- Simon v. Wal‑Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999) (standards for proving amount in controversy when demand is unspecified)
- Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392 (5th Cir. 2013) (30‑day removal clock runs from pleading or later paper that makes removability apparent)
- Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278 (5th Cir. 2007) (courts construe revival exception narrowly)
- Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (procedural rule on objections to magistrate judge recommendations)