Chott v. Cal Gas Corp.
| Decision Date | 18 October 1990 |
| Docket Number | No. 90-1049-C-5.,90-1049-C-5. |
| Citation | 746 F. Supp. 1377 |
| Parties | Edwin W. CHOTT, III, et al., Plaintiffs, v. CAL GAS CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Klutho, Cody, Kilo, Flynn, Billingsley & Trame, Michael W. Flynn, St. Louis, Mo., for plaintiffs.
Joseph H. Mueller, Muser & Marsalek, St. Louis, Mo., for defendant.
Plaintiffs filed a six-count complaint against defendant Cal Gas Corporation ("Cal Gas") in which they allege that defendant is liable for damages sustained by plaintiffs as the result of an explosion and fire. On July 2, 1990 plaintiff filed a motion to remand. On July 26, 1990 the Court denied plaintiff's motion to remand. This cause is before the Court on plaintiff's motion to reconsider the Court's denial of the motion to remand.
In a memorandum and order dated July 26, 1990 the Court concluded that plaintiff's motion to remand was untimely under 28 U.S.C. § 1447(c). Cal Gas' notice of removal was filed on June 1, 1990. Plaintiffs' motion to remand was filed on July 2, 1990, which is 31 days after the notice of removal. Title 28 U.S.C. § 1447(c) provides:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a).
In its calculation the Court failed to take into account that Cal Gas' notice of removal was mailed to plaintiff. Fed.R.Civ.P. 6(e) provides:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
Because plaintiffs filed a motion to remand within 33 days of the date on which defendant mailed its notice of removal, plaintiffs' motion to remand was timely under 28 U.S.C. § 1447(c). The Court's order and memorandum dated July 26, 1990 denying plaintiff's motion to remand is null and void. The Court will now proceed to address plaintiff's motion to remand on its merits.
Plaintiffs originally filed a petition in the Circuit Court of the City of St. Louis on October 29, 1986. Plaintiffs named Cal Gas Corporation ("Cal Gas") and Alberta Kreienkamp, the owner of the house in which the explosion occurred, as defendants in that petition. This action was not removable to federal court because there was not complete diversity between plaintiffs and defendants. On November 7, 1989 plaintiffs settled their claims against Alberta Kreienkamp and dismissed her as a defendant. Although there was now complete diversity between the plaintiffs and Cal Gas, Cal Gas could not remove the action at this time because the action had commenced more than one year before Ms. Kreienkamp's dismissal. 28 U.S.C. § 1446(b).
On March 27, 1990 plaintiffs voluntarily dismissed, without prejudice, the action against Cal Gas. Plaintiffs dismissed the action because the trial date was imminent and plaintiffs were as yet undecided whether additional defendants should be added. On May 10, 1990 plaintiffs refiled a petition against defendant Cal Gas in the Circuit Court of the City of St. Louis, Missouri.1 The allegations against Cal Gas in the refiled petition are essentially the same as those against Cal Gas in the original petition. There was complete diversity of citizenship between plaintiffs and Cal Gas. On June 1, 1990 Cal Gas removed the action to federal court.
Plaintiffs object to Cal Gas' removal as untimely under 28 U.S.C. § 1446(b), which provides, in relevant part:
A case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Plaintiff argues that the instant suit is a continuation of the original action filed on October 29, 1986. Therefore, Cal Gas cannot remove the action because its notice of removal was filed approximately 3½ years after the action was commenced. Plaintiffs assert that the Court should refer back to the filing of the first petition for application of the one year deadline in 28 U.S.C. § 1446(b). Cal Gas, however, argues that plaintiff's refiling of the petition created a completely new action for all purposes including removal.
This issue appears to be one of first impression. The Court has considered the arguments and authority cited by both parties and concludes that plaintiff's refiling of the petition after a...
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...v. Schenck Const. Co., 843 F.Supp. 1081, 1084 (S.D.W.V.1993) (FRCP 6(e) does not apply to a remand motion) with Chott v. Cal Gas Corp., 746 F.Supp. 1377, 1377 (E.D.Mo.1990) (rule does The court need not decide this question, though, if the court lacks subject matter jurisdiction over the re......
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Rashid v. Schenck Const. Co., Inc.
...ed. 1993); 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1171 (2d ed. 1987). But see Chott v. Cal Gas Corp., 746 F.Supp. 1377, 1377 (E.D.Mo. 1990). Inasmuch as the time for filing a motion to remand under section 1447(c) is thirty days from the time the notice of......
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