Jenkins v. Sandoz Pharmaceuticals Corp.

• Decision Date: 09 May 1997
• Docket Number: No. 1:97CV62-D-A.,1:97CV62-D-A.
• Parties: Marcy Sherelle JENKINS, Plaintiff, v. SANDOZ PHARMACEUTICALS CORPORATION, a Delaware Corporation, Sandoz Ltd., a Swiss Corporation, Sandoz Pharma Ltd., a Swiss Corporation, and John Does One Through Ten, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

965 F.Supp. 861

Marcy Sherelle JENKINS, Plaintiff, v. SANDOZ PHARMACEUTICALS CORPORATION, a Delaware Corporation, Sandoz Ltd., a Swiss Corporation, Sandoz Pharma Ltd., a Swiss Corporation, and John Does One Through Ten, Defendants.

No. 1:97CV62-D-A.

United States District Court, N.D. Mississippi, Eastern Division.

May 9, 1997.

COPYRIGHT MATERIAL OMITTED

Ronnie L. Jones, Jr., Law Offices of Bennie L. Jones, Jr. & Associates, West Point, MS, Steven W. Saccocia, Kellogg, Saccocia & Sigelman, Atlanta, GA, for plaintiff.

William F. Goodman, III, Watkins & Eager, Jackson, MS, Linda S. Comer, Hall & Evans, L.L.C., Denver, CO, for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause comes before the court upon the motion of the plaintiff to remand this action to the Circuit Court of Lee County, Mississippi. The defendants removed this case from state court on February 28, 1997. The plaintiff followed with her motion to remand on March 27, 1997, and this issue has since been fully briefed by all parties. The court finds the motion well taken and shall grant it.

DISCUSSION

I. GENERAL PRINCIPLES

The burden is on the defendant to prove federal jurisdiction exists over the state court suit. Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). Due to the significant federalism concerns removal raises, courts should strictly construe the removal statute. Carpenter, 44 F.3d at 365-66 (citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, 106 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941)). Further, all doubts must be resolved in favor of remand. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979).

Actions may be removed to the appropriate district court where the court would have had original jurisdiction had it first been filed there instead of state court. 28 U.S.C. § 1441(a); Caterpillar v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Merkel v. Federal Express Corp., 886 F.Supp. 561, 564 (N.D.Miss.1995). "Subject matter jurisdiction may not be waived, and the district court `shall dismiss the action' whenever `it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter.'" Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir.1995) (quoting Fed.R.Civ.P. 12(h)(3)). No federal question jurisdiction has been asserted by the defendants. Instead, the issue in dispute is whether the defendants timely removed this action under 28 U.S.C. § 1446(b) on the basis of diversity jurisdiction.

II. PROCEDURAL HISTORY

The plaintiff filed her initial Complaint in the Circuit Court of Chickasaw County,¹ Mississippi on February 6, 1996, naming as defendants Sandoz Ltd., Sandoz Pharmaceutical Corp., John Doe Distributing Corp., Dr. Mark Kellum, North Mississippi Medical Center ("NMMC") and John Does one through ten. Plaintiff's Exh. A; Defendants' Exh. A. At the time the Complaint was filed and all other times relevant to the resolution of this motion, the plaintiff and defendants Kellum and NMMC were citizens and residents of the State of Mississippi. Summonses for service of process for Kellum, NMMC, and Sandoz Pharmaceutical Corp. issued on April 9, 1996, and for Sandoz Ltd. on June 7, 1996. Defendants' Exh. A. Defendant Sandoz Ltd., however, was never served with the original Complaint.² By order dated August 26, 1996, the state court granted the plaintiff's motion to extend time to complete service and to amend her Complaint. The plaintiff filed her Amended Complaint on September 3, 1996, and added Sandoz Pharma Ltd. as a defendant. The parties do not dispute that all defendants were served with the Amended Complaint.

After deposing defendant Kellum on January 21, 1997, the plaintiff agreed to dismiss Kellum and NMMC from this action. Plaintiff's Exh. L. The parties executed a Stipulation of Dismissal With Prejudice as to Kellum on February 18, 1997, and as to NMMC on February 28, 1997. After the dismissal of these two non-diverse defendants, the remaining defendants filed a Notice of Removal on February 28, 1997, stating that this court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1332, 1441(a), and 1446. The plaintiff filed her motion to remand to state court on March 27, 1997, and the defendants have timely responded.

III. WAS REMOVAL PROPER?

Section 1332 provides that

[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000,³ exclusive of interest and costs, and is between —

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties....

28 U.S.C. § 1332(a). When a plaintiff files an action in state court over which a district court otherwise could have exercised original jurisdiction, such action may be removed by the defendant or defendants "to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). When the district court's original jurisdiction is premised on diversity of citizenship, the removal statute imposes the further restriction that none of the removing parties "properly joined and served as defendants [may be] a citizen of the State in which such action is brought." Id. § 1441(b).

Due to the presence of resident defendants Kellum and NMMC in this action when it was first filed in state court, diversity of citizenship did not exist at that time and this court could not have exercised original jurisdiction over the action. However, with the dismissal of those defendants, the remaining parties' citizenship became completely diverse. The defendants then removed, pursuant to section 1446 which 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. 28 U.S.C. § 1446(b) (emphasis added). In her motion to remand, the plaintiff asserts that even though complete diversity now exists, the defendants improperly removed the action on February 28, 1997, because more than one year had elapsed after she filed her original Complaint on February 6, 1996. The defendants counter that the action was not actually commenced until April 9, 1996, when the plaintiff served the first summonses. In the alternative, they submit that the plaintiff's Amended Complaint filed on September 3, 1996, actually began a new action. Under either theory of the defendants, the February 28, 1997, removal falls within the one year limitation. As a final argument, the defendants contend that the one-year proscription against removal on the basis of diversity is a procedural rule subject to waiver, estoppel and other principles of equity which should apply in this action to prevent the plaintiff from asserting the one-year time limitation contained in the removal statute.

A. Commencement of an Action

The statute provides that removal may not be accomplished more than one year subsequent to the commencement of an action. 28 U.S.C. § 1446(b). This court must thus determine when an action actually "commences." Federal Rule of Civil Procedure 3 sets out that "[a] civil action is commenced by filing a complaint with the court." Fed. R.Civ.P. 3. The Mississippi Rules of Court also provide a similar definition. Miss. R.Civ.P. 3 ("A civil action is commenced by filing a complaint with the court."). From the unambiguous language provided by these procedural rules, there appears to be no question that an action "commences" upon the filing of a complaint, and not when the summonses issue.⁴ Our sister court in the Southern District of Mississippi also addressed this issue in a similar removal context and reached the same conclusion. Morrison v. National Ben. Life Ins. Co., 889 F.Supp. 945, 948 & n. 2 (S.D.Miss.1995) (declining to adopt reasoning set forth in Greer v. Skilcraft, 704 F.Supp. 1570 (N.D.Ala.1989) cited by defendants); see also TLI, Inc. v. United States, 100 F.3d 424, 427 (5th Cir. 1996); Johnston v. United States, 955 F.2d 19, 20 (5th Cir.1992) (holding statute of limitations satisfied by filing of complaint within statutory period even though service of process not issued until after expiration of period); Antoine v. United States Postal Serv., 781 F.2d 433, 436 (5th Cir.1986). This court is of the opinion that an action commences upon the filing of a complaint. Under this reasoning, the defendants removed this action outside the one-year limitation period unless the plaintiff's filing of the Amended Complaint actually commenced a new action.

B. Commencement of New Action — Revival of Removal Right

Alternatively, the defendants contend that the plaintiff's Amended Complaint substantially changed the nature of the lawsuit and thus "revived" the defendants' right to removal. Defendants' Brief at 6 (citing Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n, 668 F.2d 962, 966 (7th Cir.1982), cert. denied, 459 U.S. 831, 103 S.Ct. 70, 74 L.Ed.2d 70 (1982)). Wilson is the seminal case setting out the parameters for when a defendant's right to removal is revived. 668 F.2d at 965-66. In that case, decided prior to the statutory amendment to § 1446(b) which incorporated the one-year...