Lovern v. General Motors Corp.

• Decision Date: 14 August 1997
• Docket Number: No. 96-1762,96-1762
• Citation: 121 F.3d 160
• Parties: Grover Lee LOVERN, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 160

121 F.3d 160

Grover Lee LOVERN, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 96-1762.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1997.

Decided Aug. 14, 1997.

ARGUED: Christopher Karl Kowalczuk, Richard Lee Lawrence & Associates, Roanoke, VA, for Appellant. Michael D. Jones, Paul Brian Taylor, Kirkland & Ellis, Washington, DC, for Appellee. ON BRIEF: Paul F. Brinkman, Kirkland & Ellis, Washington, DC, for Appellee.

Before NIEMEYER and HAMILTON, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge HAMILTON and Judge LEGG joined.

OPINION

NIEMEYER, Circuit Judge:

The removal statute, 28 U.S.C. § 1446(b), provides that notice of removal of a case from state court to federal court shall be filed within 30 days after receipt of the initial pleading or, in certain circumstances, within 30 days after receipt of a paper from which "it may first be ascertained that the case is one which is ... removable." In this case we hold that General Motors Corporation timely removed the case on diversity-jurisdiction grounds when it filed its notice of removal 28 days after receipt of a police report that first demonstrated the plaintiff's diverse residency and 8 days after receipt of answers to interrogatories demonstrating his diverse citizenship, even though the notice of removal was filed 88 days after service of the complaint which did not reveal plaintiff's address or citizenship.

I

In 1992, while driving on Interstate Highway 581 in Roanoke, Virginia, Grover Lee Lovern was involved in an automobile accident. Arguing that the severity of his injuries was attributable to the defective design and manufacture of the seat belt in his Pontiac automobile manufactured by General Motors Corporation, Lovern filed an action against General Motors in the Circuit Court of the City of Roanoke, Virginia, seeking $500,000 in damages.

The initial pleading, which was served on General Motors on October 21, 1994, offered no indication of Lovern's citizenship. After General Motors filed its grounds for defense, it served interrogatories inquiring specifically into Lovern's citizenship. On January 23, 1995, Lovern provided his answers, stating that he was a Virginia citizen. Earlier that month, on January 3, 1995, General Motors also received a copy of the police report on the accident, which disclosed Lovern's Virginia residence.

Eight days after receipt of the interrogatory answers and 28 days after receipt of the police report, General Motors filed a notice of removal of the case to the United States District Court for the Western District of Virginia, asserting diversity jurisdiction under 28 U.S.C. § 1332. Lovern moved to remand the case to state court on the ground that General Motors' notice of removal was filed untimely, having been filed 88 days after service of complaint on General Motors. The district court denied the motion, finding that General Motors only ascertained that the case was removable upon receipt of the police report and that therefore it had filed its notice within 30 days as prescribed by 28 U.S.C. § 1446. Thereafter, the district court granted General Motors' motion for summary judgment on the merits.

On appeal, Lovern challenges only the district court's jurisdiction, contending that the court erred in finding that the case had been timely removed.

II

The sole question before us--whether the notice of removal was timely filed--requires an interpretation of 28 U.S.C. § 1446, establishing the procedure for removal of any case filed in a state court but over which the district courts of the United States would have original jurisdiction. The parties agree that Lovern and General Motors have diverse citizenship, and they do not dispute any other fact relevant to the removal. Thus, our review is confined to a de novo review of the district court's statutory interpretation.

Section 1446 of Title 28, establishing procedures for removal of any case authorized to be removed by 28 U.S.C. § 1441, provides that a defendant desiring to remove a civil case from state court to federal court must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds." 28 U.S.C. § 1446(a). The notice must be filed within 30 days after service on the defendant of initial process, or "[i]f the case stated by the initial pleading is not removable," the notice 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.

28 U.S.C. § 1446(b). Finally, the section provides that diversity cases must in any event be removed not more than one year after "commencement of the action." Id.

In this case, Lovern and General Motors were of diverse citizenship from the time the complaint was first filed in state court, but Lovern concedes that nothing on the face of his initial pleading revealed this fact. Nonetheless, he argues that General Motors should not have the advantage of the extended removal time provided by the second sentence of § 1446(b) because, he argues, that extended time applies only if "the case stated by the initial pleading is not removable." In essence, Lovern argues that even when the complaint did not on its face reveal a basis for federal jurisdiction, General Motors was bound by the actual status of the parties' citizenship at the time of service of the complaint and was obliged to remove the case within 30 days after service or lose its opportunity to do so. He argues that the case of the indeterminate complaint should be resolved against the defendant, reserving the extended time for removal for the case in which the parties' citizenship changes and the case becomes removable or to the case in which their citizenship has been misstated.

Having examined the statutory language and policy, we reject Lovern's interpretation. Rather, we conclude that only where an initial pleading reveals a ground for removal will the defendant be bound to file a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the...