Products Liability Law Reporter

A federal district court held that a plaintiff’s email attaching a fire report that implied the possibility of federal jurisdiction did not clearly and unambiguously establish federal jurisdiction in a case alleging a mosquito protection device caused a fire.

Jacqueline Flynn purchased Thermacell’s Patio Shield Mosquito Protection Device from Lowe’s Home Centers. She used the product at her home as intended; shortly after, however, her property and its contents were damaged in a fire. Flynn brought a state court action against Thermacell Repellents, Inc., and Lowe’s Home Centers in state court, asserting that the fire resulted from her use of the product. The plaintiff alleged that the action was for damages in excess of $50,000, exclusive of interest, costs, and attorney fees. The defense removed the case to federal court, citing diversity jurisdiction. The plaintiff moved to remand on the basis that the removal was untimely. A fire report had been sent to Thermacell attached to an email, and the report contained a section referencing total losses of $280,000, the plaintiff asserted, arguing that Thermacell did not remove the case within 30 days of receiving the document.

Denying the plaintiff’s motion, the district court noted that 28 U.S.C. §1441(a) allows a defendant to remove a civil action from state court to federal district court where the basis for the underlying claim is federal question or diversity jurisdiction. Diversity jurisdiction, the court added, requires complete diversity of citizenship between the parties and an amount in controversy over $75,000. Where the plaintiff does not plead a specific amount of damages, the removing defendant bears the burden of establishing the jurisdictional threshold by a preponderance of the evidence, the court said. Moreover, under 28 U.S.C. §1446(b)(3), a defendant must file its notice of removal within 30 days of receiving a copy of an amended pleading, motion, order, or other paper from which it may be ascertained that the case is one that has become removable.

Applying these principles, the court concluded that while the plaintiff’s email attaching the fire report may have suggested or implied there could be federal jurisdiction, it did not establish this fact as unequivocally clear or certain. For example, the court found, it is unclear what the purpose of providing an estimate of losses was in the context of the fire report, who gave the estimate, and the facts on which the estimate was based. Moreover, the report was attached to a two-line email from the plaintiff’s counsel in response to Thermacell’s request for a copy of the report and other related documents, the court said.

Consequently, the court concluded that neither the fire report nor the email clearly and unambiguously established federal jurisdiction, triggering the 30-day removal period. As such, the court held that the defendants’ removal of the action to federal district court was timely.

Citation: Flynn v. Thermacell Repellents, Inc., 2024 WL 3983013 (M.D. Fla. Aug. 29, 2024).