Graft v. Alcoa, Cause No. 1:02-cv-01848-JDT-TAB (S.D. Ind. 4/4/2003)

• Decision Date: 04 April 2003
• Docket Number: Cause No. 1:02-cv-01848-JDT-TAB.
• Parties: WANITA GRAFT, individually and as Special Administrator of the Estate of CLARENCE GRAFT, deceased Plaintiff, v. ALCOA, et. al. Defendants.
• Court: U.S. District Court — Southern District of Indiana

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WANITA GRAFT, individually and as Special Administrator of the Estate of CLARENCE GRAFT, deceased Plaintiff, v. ALCOA, et. al. Defendants.

Cause No. 1:02-cv-01848-JDT-TAB.

United States District Court, S.D. Indiana, Indianapolis Division.

April 4, 2003.

Robert G. McCoy, Cascino Vaughan Law Offices, Chicago, IL.

Donald J. Berger Berger James & Gammage, South Bend, IN.

Kevin R. Knight, Ice Miller, Indianapolis, IN.

Dennis F. Cantrell, Bingham McHale LLP, Indianapolis, IN.

Susan Mehringer, Lewis & Wagner, Indianapolis, IN.

Janet Nelson, Hume Smith Geddes Green & Simmons, Indianapolis, IN.

REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION TO REMAND

TIM A. BAKER, Magistrate Judge.

Plaintiffs, who are Indiana citizens, filed an original action in state court on May 22, 2000 naming both diverse and non-diverse Defendants. In January 2001, the remaining Indiana Defendant was dismissed from the case. On September 30, 2002, after the case resided in state court for almost two and one-half years, Plaintiffs were granted leave to file a fourth amended complaint. Plaintiffs filed their complaint, and added Owens-Illinois, a diverse Defendant. On November 26, 2002, Owens-Illinois removed this action to federal court based on diversity jurisdiction. At the time of removal, no remaining Defendant was a citizen of Indiana.

Citing 28 U.S.C. § 1446(b), Plaintiffs move to remand the case to state court claiming that removal was improper because: (1) once the last Indiana Defendant was dismissed in January 2001, the thirty-day clock starting running for the remaining first-served diverse Defendant to remove the case; and (2) the case resided in state court for over one year. Defendants oppose this motion. For the reasons set forth below, the Magistrate Judge recommends that Plaintiffs' motion to remand be GRANTED.

I. Procedural History

The fourth amended complaint filed in the Howard Superior Court alleges that Clarence Graft (represented by his Administrator and surviving wife, Wanitta Graft (collectively as "Plaintiffs")),worked as a plumber and pipefitter throughout several work sites in the state of Indiana. Throughout his twenty-year career, C. Graft was exposed to asbestos fibers at various work sites. On March 30, 2000, C. Graft was diagnosed with lung cancer. [Fourth Am. Compl. ¶¶ 2-4]. Plaintiffs allege that exposure to asbestos-containing products eventually caused C. Graft's death. [Mot. to Remand, p. 2 n. 2].

On May 22, 2000, the Grafts filed an original complaint in state court. The Grafts at that time were Indiana citizens, as were three of the Defendants. On January 17, 2001, Delco Electronics Corporation, the remaining Indiana citizen Defendant, was dismissed with prejudice from the lawsuit. [Not. of Removal, Ex. B]. On September 30, 2002, the state court granted Plaintiffs' leave to file a fourth amended complaint naming Owens-Illinois, an Illinois corporation, as a Defendant for the first time. [Id.]

On November 26, 2002, within thirty days of receiving Plaintiffs' fourth amended complaint, pursuant to 28 U.S.C. § 1446(b), Defendant Owens-Illinois filed a notice of removal asserting diversity of citizenship as the sole basis for subject matter jurisdiction. All of the remaining Defendants (Alcoa, DaimlerChrysler Corporation, and Zurn Industries), consented to the removal. [Not. of Removal ¶ 6].¹ In response, on December 24, 2002, Plaintiffs filed a motion to remand the case to state court.

II. Discussion

A. Standard on Motion to Remand

The federal courts "are courts of limited jurisdiction." United Phosphorus, Ltd. v. Angus Chemical Co., ___ F.3d ___, 2003 WL 910592, *12 (7th Cir. Mar. 10, 2003). Likewise, the right to remove an action from a state court to a federal court exists only in limited circumstances. See Roddy v. Urban League of Madison County, 2002 WL 1398534, *2 (S.D.Ind. 2002). The party invoking the Court's jurisdiction bears the burden of proving that jurisdiction exists. Alliant Energy Corp. v. Bie, 277 F.3d 916, 919 (7th Cir. 2002). See also Fate v. Buckeye State Mut. Ins. Co., 174 F. Supp. d 876, 878-79 (N.D.Ind. 2001) ("Generally, the party seeking a federal forum has the burden of establishing that jurisdiction in the federal courts is appropriate."). Courts should interpret removal statutes narrowly and presume that the plaintiff may choose his or her forum. See, e.g., Gutierrez v. Schoen Machinery USA, Inc., 2003 WL 291912, *2 (N.D.Ill. Feb. 10, 2003), citing Doe v. Allied Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) ("We note that the removal statute is to be interpreted narrowly and that any ambiguity is to be resolved in favor of the state"). However, "any doubts regarding jurisdiction should be resolved in favor of remanding the action to state court." Thomas v. Guardsmark, Inc., 2003 WL 57028, *1 (N.D.Ill. Jan. 7, 2003).

B. The One-Year Statute of Limitations in 28 U.S.C. § 1446(b) Precludes Removal

28 U.S.C. § 1446(b) provides:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that 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.

Gutierrez, 2003 WL 291912, at *1, quoting in part § 1446(b); Maglione v. Cottrell, Inc., 2000 WL 988529, *2 (N.D.Ill. 2000). Citing the one-year provision in section 1446(b), Plaintiffs claim that the case should be remanded since their case was originally filed on May 22, 2000, and Defendants removed the case on November 26, 2002, far past the one-year limitation for removal. [Mot. to Remand, pp. 3-4]. In response, Defendants contend that the filing of Plaintiffs' fourth amended complaint on September 30, 2002 was an entirely new action, and therefore started the one-year limitations period anew. [Defs.' Resp. to Mot. to Remand, pp. 3-4]. For example, Defendants note that the fourth amended complaint sets forth, for the first time, a violation of the Indiana Wrongful Death Act, and names three new Defendants, Owens-Illinois, Zurn, and Alcoa. [Id. at p. 4].

A "key question for courts regarding removal under § 1446(b) has been when the action commences for purposes of the statute." Sledz v. Flintkote Co., 209 F. Supp.2d 559, 561-62 (D.Md. 2002). In such instances, "[c]ourts which have considered that question have looked to the law of the state in which the state court action originated to determine when an action `commences.'" Id. at 562, citing Zumas v. Owens-Corning Fiberglas Corp., 907 F. Supp. 131, 132 (D.Md. 1995). In Indiana, "[a] civil action is commenced by filing with the court a complaint, or such equivalent pleading or document as may be prescribed by statute. . . ." Jackson v. City of Jeffersonville, 771 N.E.2d 703, 706 (Ind.Ct.App. 2002), quoting Ind. Trial Rule 3.

A "commencement" approach was adopted in Sasser v. Ford Motor Co., 126 F. Supp.2d 1333 (M.D.Ala. 2001). In that case, on July 31, 1998, the plaintiff filed a complaint in state court against nondiverse defendants. On October 12, 1999, the plaintiff filed an amended complaint naming a diverse defendant, and added several claims. On March 3 and March 21, 2000, the state court dismissed the plaintiff's claims against the nondiverse defendants. The diverse defendant then removed the case on May 17, 2000. Plaintiff opposed the removal, claiming it was untimely. In granting the plaintiff's motion to remand, the court held that the diverse defendant failed to satisfy the one-year requirement. The court reasoned that for the purposes of § 1446(b), the action was commenced at the time of the filing of the initial complaint, as removal statutes are to be construed narrowly and "where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Id. at 1336, quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). See also Sledz, 209 F. Supp.2d at 562-64 (in applying Maryland law, the court adopted the reasoning in Sasser and granted plaintiff's motion to remand); Waller v. American Seafood Co., 1999 WL 694109, *2 (E.D.La. 1999) (applying Louisiana law on commencement of action and granting plaintiff's motion to remand).

Here, although Defendants contend that the commencement of this action took place upon the filing of Plaintiffs' fourth amended complaint on September 30, 2002, Indiana Trial Rule 3 provides otherwise. Defendants removed this case two years and six months after it was commenced in the state court. Applying the one-year rule of section 1446(b), the last day any defendant could have removed this action was May 22, 2001. Indeed, many courts that have addressed this issue have concluded that the one-year limit is an absolute jurisdictional bar. See, e.g., Lindsey v. Dillard's, Inc., 306 F.3d 596, 600 (8th Cir. 2002) ("Failure of a party to remove within the one year limit precludes any further removal based on diversity."); Bearup v. Milacron, 2002 WL 482548, *3 (E.D.Mich. 2002) ("If a case which was not initially removable, then later becomes removable because a non-diverse defendant has been dismissed but the dismissal occurred one-year after the case was filed, § 1446(b) would bar such a removal."); Santiago v. Barre National, Inc., 795 F. Supp. 508, 510 (D.Mass. 1992) ("the one-year bar is absolute"); Green Point Sav. Bank v. Hidalgo, 910 F. Supp. 89, 92 (E.D.N.Y. 1995) ("the one-year limitation in section 1446(b) goes to subject matter jurisdiction"); Foiles by Foiles v. Merrell Nat. Laboratories, a Div. of Richardson-Merrell, Inc., 730 F. Supp. 108, 110 (N.D.Ill. 1989) ("the plain language of § 1446(b) [] reads as a blanket prohibition on removal of a diversity case more than one year after commencement of the...