King v. Flinn & Dreffein Engineering Co.

• Decision Date: 23 November 2009
• Docket Number: Civil Action No. 7:09-cv-00410.
• Citation: 675 F.Supp.2d 642
• Court: U.S. District Court — Western District of Virginia
• Parties: Charles KING, Plaintiff, v. FLINN & DREFFEIN ENGINEERING CO., Defendant.

675 F.Supp.2d 642

Charles KING, Plaintiff, v. FLINN & DREFFEIN ENGINEERING CO., Defendant.

Civil Action No. 7:09-cv-00410.

United States District Court, W.D. Virginia, Roanoke Division.

November 23, 2009.

Anthony Marc Russell, S.D. Roberts Moore, Gentry Locke Rakes & Moore, Dale Wade Webb, Frankl Miller & Webb LLP, Roanoke, VA, for Plaintiff.

Frances Elizabeth Burgin, Francis H. Casola, Woods Rogers PLC, Roanoke, VA, for Defendant.

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

This matter is presently before the court on Plaintiff Charles King's Motion to Remand to State Court (Dkt. No. 5). Defendant Flinn & Dreffein Engineering Co. filed a Memorandum in Opposition to Plaintiffs Motion to Remand (Dkt. No. 8). Plaintiff King filed a Reply to Defendant's Memorandum in Opposition to Plaintiffs Motion to Remand (Dkt. No. 10). The Court heard oral argument on the Motion on November 17, 2009. For the reasons that follow, Plaintiff King's Motion to Remand is DENIED and King is hereby GRANTED a certificate of appealability for an interlocutory appeal.

I. Procedural History

Plaintiff Charles King (hereafter "King") filed the complaint in this matter in the Circuit Court for the City of Roanoke, Virginia, on September 17, 2008. King did not serve the defendant until September 17, 2009, exactly one year after King filed the complaint in state court. On October 7, 2009, Defendant Flinn & Dreffein Engineering Co. (hereafter "Flinn") filed a Notice of Removal under 28 U.S.C. § 1441 and 28 U.S.C. § 1446. The basis of removal was diversity jurisdiction under 28 U.S.C. § 1332: King is a resident of Virginia, Flinn is incorporated in Illinois, and the complaint seeks damages of $10 Million. Flinn asserted that removal was proper because the Notice of Removal was filed within thirty days after they received service of the complaint, thereby complying with 28 U.S.C. § 1446(b). King's Motion to Remand, however, asserts that removal is improper because, under 28 U.S.C. § 1446(b), diversity cases may not be removed more than one year after commencement of the action.

II. Both Statute and Precedents Are Ambiguous

Section 1446 of Title 28 sets forth the proper procedures for removal and, among other limitations, specifies that:

(b) The notice of removal of a civil action or proceeding shall 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

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.

The latent ambiguity of this subsection is whether the one-year limitation on removal applies to all diversity cases, or only to those cases that were not removable as stated in the initial pleading. Wright, Miller & Cooper highlights this confusion by noting:

[There is no] inevitable construction of the statute, however. Textually, it might be read as applying to all diversity causes, whether initially removable or not. Under this construction, an additional requirement for diversity of citizenship removal jurisdiction is that the case has been in state court for less than a year.

14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3732 (3d ed.1998). Reading the one-year limitation as jurisdictional and not procedural would obligate this Court to remand the case to state court, because the suit would be outside of the Court's subject matter jurisdiction. "Although a federal court may waive procedural rules at times, it cannot entertain a suit that is not within its subject matter jurisdiction." Id.

The correct interpretation of 28 U.S.C. § 1446(b) is unresolved in the Fourth Circuit. Dicta by the Fourth Circuit has suggested that 28 U.S.C. § 1446(b) may be an "absolute bar to removal of cases in which jurisdiction is premised on 28 U.S.C. § 1332 `more than 1 year after commencement of the action.'" Lovern v. Gen. Motors Corp., 121 F.3d 160, 163 (4th Cir.1997) (citing 28 U.S.C. § 1446(b)). The "absolute bar" language suggests that § 1446(b) may be considered jurisdictional. Other District Courts in the Fourth Circuit, however, acknowledge that Lovern is neither precedential nor determinative of this issue. See U.S. Airways, Inc. v. PMA Capital Ins. Co., 340 F.Supp.2d 699, 708 n. 13 (E.D.Va.2004) (acknowledging, "the issue remains unresolved in this circuit ... [although] it would seem unlikely that the Fourth Circuit would adopt such an exception to § 1446(b)'s `absolute bar' to removal"); Culkin v. CNH Am., LLC, 598 F.Supp.2d 758, 761 (E.D.Va.2009) (noting, "the Fourth Circuit has referred, in dicta, to the one year limitation ... as an `absolute bar' ... thus ... equitable tolling is likely not available").

But it is incorrect to conclude that the District Courts in the Fourth Circuit have unanimously adopted this position. In Rauch v. Rauch, 446 F.Supp.2d 432 (D.S.C.2006), the court rejected the "absolute bar" position. The court expressly rejected the characterization of the "statutory limitation of § 1446(b) ... [as] jurisdictional" and therefore found it waivable "in the favor of equity where the plaintiff has acted improperly to prevent removal." Id. at 436. The court in Rauch certified the question for an interlocutory appeal to decide "whether the one year limitation on removal to federal court described by 28 U.S.C. § 1446(b) is properly characterized as a jurisdictional limitation or whether it is not jurisdictional, and thus may be waived in the favor of equity." Id. at 436-37. The parties never pursued this appeal.

Although the Fourth Circuit has not decisively answered this question, the other circuit courts of appeal that have addressed this question are in consensus and have all reached the same result as the Rauch court. Decisions by the courts of appeal for the Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits have all concluded that the one year limitation of § 1446(b) does not apply to cases which were initially removable when filed.¹ Thus, they concluded the one year limitation is not a jurisdictional requirement for all diversity cases, but merely a procedural requirement applicable to cases not initially removable when filed.

III. Plain Reading of Statute Is Consistent with Interpretation by Other Circuits

This Court concludes that the plain language of the statute imposes the one year limitation on removal exclusively on cases that are not removable when filed. Because the Plaintiffs case was removable upon the filing of the complaint, the Defendant must only comply with the first paragraph of § 1446(b). Hence, a Defendant may file a notice of removal within "thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant." 28 U.S.C. § 1446(b). It is only when the Plaintiffs case is not removable on the basis of the initial pleading that the second paragraph need be considered, and the one year limitation imposed. "Based on the ordinary language usage, the qualifying clause [of the one year limitation] ... can only be interpreted to modify the antecedent clause to which it is attached, and not previous sections of the text." Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534-35 (6th Cir.1999), cert. denied, 528 U.S. 1076, 120 S.Ct. 790, 145 L.Ed.2d 667 (2000). This is eminently reasonable. If Congress wished to establish a jurisdictional bar on removal that applied to all diversity cases, Congress could have easily placed the one year limitation into its own sentence or paragraph at the end of § 1446(b). See Zogbi v. Federated Dep't Store, 767 F.Supp. 1037, 1040 n. 4 (C.D.Cal.1991). Like the Ninth Circuit, this Court "sees no reason to twist ordinary language usage and rules of grammar in order to preclude removal." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir.1998), cert. denied, 525 U.S. 963, 119 S.Ct. 407, 142 L.Ed.2d 330 (1998). The text of the statute, although technically susceptible to a different interpretation, is most sensibly understood as applying the one year limitation on removal only to those cases which are not initially removable. Thus, the one year limitation should be understood not as a jurisdictional bar applicable to all diversity cases, but rather a procedural bar applicable only to certain removal cases.

This characterization is consistent with the title of 28 U.S.C. § 1446, "Procedure for removal," which confirms the procedural nature of this limitation. Although "it has long been established that the title of an Act `cannot enlarge or confer powers,'" reference to the title of this subsection is, nevertheless, useful in resolving whatever ambiguity still exists. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n. 14, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (citing United States v. Or. & Cal. R. Co., 164 U.S. 526, 541, 17 S.Ct. 165, 41 L.Ed. 541 (1896)). The Supreme Court has often "stated that the title of a statute or section can aid in resolving an ambiguity in the legislation's text." I.N.S. v. Nat'l Ctr. for Immigrant's Rights, Inc., 502 U.S. 183, 189, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991) (holding, "the text's generic reference to `employment' should be read as a reference to the ...