Noble v. Bradford Marine, Inc.

• Decision Date: 17 April 1992
• Docket Number: No. 90-6372-CIV,90-6599-CIV.,90-6372-CIV
• Citation: 789 F. Supp. 395
• Parties: Lyn C. NOBLE, Plaintiff, v. BRADFORD MARINE, INC., a Florida corporation, Prime Time Charters, Inc., a foreign corporation, and Robert Yanover, Defendants. Robert C. MUIR, Plaintiff, v. BRADFORD MARINE, INC., a Florida corporation, Prime Time Charters, Inc., a North Carolina corporation, and Insurance Company of North America, a Pennsylvania corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

789 F. Supp. 395

Lyn C. NOBLE, Plaintiff, v. BRADFORD MARINE, INC., a Florida corporation, Prime Time Charters, Inc., a foreign corporation, and Robert Yanover, Defendants.

Robert C. MUIR, Plaintiff, v. BRADFORD MARINE, INC., a Florida corporation, Prime Time Charters, Inc., a North Carolina corporation, and Insurance Company of North America, a Pennsylvania corporation, Defendants.

Nos. 90-6372-CIV, 90-6599-CIV.

United States District Court, S.D. Florida, West Palm Beach Division.

April 17, 1992.

Doug Willis, Palm Beach Gardens, Fla., for Muir.

Kim Whitaker, Weaver, Weaver & Petrie, P.A., Ft. Lauderdale, Fla., for Noble.

Keith Grybowski, Hayden & Milliken, P.A., Layton Mank, Miami, Fla., for defendant Bradford Marine.

Gary Genovese, Conrad, Scherer & James, Ft. Lauderdale, Fla., for defendants Prime Time Charters, Inc., Robert Yanover and Insurance Co. of North America.

ORDER OF REMAND

PAINE, District Judge.

This matter comes before the court sua sponte. After an extreme close-up review of the record and excellent authorities, the court enters the following order.

Hurling Chunks

On October 11, 1988, while berthed at the facilities of Bradford Marine, Inc. ("Bradford"), a fire spewed from the M/V Prime Time, a boat owned by Prime Time Charters, Inc. ("Prime Time"). The blaze hurled chunks of flaming debris to other vessels, destroying those owned by Lyn C. Noble ("Noble") and Robert C. Muir ("Muir"). Thereafter, Noble and Muir commenced, on June 7, 1989, and July 15, 1989, respectively, separate actions in the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida.

After Noble amended her Complaint so as to add Prime Time as a new party, that Defendant, on May 9, 1990, removed the proceeding to federal court, claiming original jurisdiction insofar as the Plaintiff's causes of action or rights arose under the Article III, Section 2 of the United States Constitution.¹ Prime Time asserted that removal was timely because it came within thirty days of service of the Amended Complaint. Similarly, the Muir action was also removed after that Plaintiff amended his Complaint so as to add Prime Time as a Defendant. The Noble suit, Case No. 90-6372, was randomly assigned to the undersigned, the Muir suit, Case No. 90-6599, to another judge in this district.

Upon Bradford's objection, this court, by Order dated June 28, 1990, remanded the Noble action to the state court for the failure of all Defendants to join in the removal. On August 31, 1990, in accordance with Rule 6(C) of the General Rules of the Southern District of Florida,² the Muir suit was transferred to the undersigned. Thereafter, Prime Time filed a Supplemental Notice of Removal (DE 2), bearing both the Noble and Muir captions, attempting to effect a phoenix-like ascent to federal court through the Muir proceeding.

Like a Winged Monkey Flying Out of the Ashes ...

A district court may, and always should, determine sua sponte whether its subject matter jurisdiction has been properly invoked. Bahr v. National Ass'n of Securities Dealers, Inc., 763 F.Supp. 584, 587 (S.D.Fla.1991). See 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3721 (2d ed. 1985). In addition, removal statutes should be strictly construed, Thomas v. Burlington Indus., Inc., 763 F.Supp. 1570, 1575 (S.D.Fla.1991), and "if at anytime before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

The Notice of Removal of a civil action must be filed "within thirty 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). If the case, as stated by the initial pleading, is not removable, removal may be effected within thirty days after receipt or otherwise, of a copy of an amended pleading from which it may be ascertained that the case is removable. Id. As time limitations in removal statutes are mandatory and strictly construed in accordance with Rule 6 of the Federal Rules of Civil Procedure, the failure to comply with time requirement of Section 1446(b) is a defect causing "improvident" removal. London v. United States Fire Ins. Co., 531 F.2d 257, 259 (5th Cir. 1976).³

NOT!

The addition of a new Defendant in an Amended Complaint, however, does not start the time for removal anew when the original Complaint itself was removable. Samura v. Kaiser Foundation Health Plan, Inc., 715 F.Supp. 970, 971 (N.D.Cal.1989). Unless the amendment sets forth a new basis of federal jurisdiction, subsequent events do not make a removable case "more removable" or "again removable." Hubbard v. Union Oil Co., 601 F.Supp. 790, 795 (S.D.W.Va.1985). Thus, the failure of initial Defendants to remove during the original thirty day time period is deemed a waiver of the right of removal which is binding on subsequently added Defendants. Miles v. Starks, 440 F.Supp. 947, 948 (N.D.Tex.1977).

A Schwing and a Miss

Because of the court's admiralty jurisdiction, Muir's original Complaint, like his Amended Complaint, provided Bradford with a basis for removal. Bradford's failure or waiver of the removal right, therefore, is binding on...