Sledz v. Flintkote Co.

• Decision Date: 11 July 2002
• Docket Number: No. CIV. AMD 02-2050.,CIV. AMD 02-2050.
• Citation: 209 F.Supp.2d 559
• Parties: Charles Michael SLEDZ, Plaintiff v. The FLINTKOTE COMPANY, et al., Defendants
• Court: U.S. District Court — District of Maryland

209 F.Supp.2d 559

Charles Michael SLEDZ, Plaintiff v. The FLINTKOTE COMPANY, et al., Defendants

No. CIV. AMD 02-2050.

United States District Court, D. Maryland.

July 11, 2002.

Brian C. Parker, parker Dumler and Kiely LLP, Baltimore, MD, for Plaintiff.

Geoffrey S. Tobias, Ober Kaler Grimes and Shriver, Sidney G. Leech, Goodell DeVries and Dann LLP, Theodore F. Roberts, McCarter and English LLP, Stephen Salvatore McCloskey, Greber Simms and Showers LLP, Patrick C. Smith, Church Loker and Silver PA, Thomas P. Bernier, Goldfein & Hosmer, Thomas M. Goss, Goodell DeVries and Dann LLP, Deborah L. Robinson, Melodie M. Mabanta, Tricia Ann Dytkowski, Robinson Woolson PA, Peter Allan Woolson, Robinson Woolson O'Connell, LLP, Gerry H. Tostanoski, Tydings and Rosenberg LLP, Laura A. Cellucci, Church Loker and Silver PA, Thomas J S Waxter, III, Goodell, DeVries Leech and Dann LLP, Joseph Martin English, IV, McGuire Woods LLP, Margaret Fonshell Ward, Moore and Jackson LLC, Donald S. Meringer, James George Koutras, McCarter and English LLP, Douglas B. Pfeiffer, Church Loker and Silver PA, Thomas J S Waxter, Jr., The Honorable, Semmes Bowen and Semmes PC, Baltimore, MD, for Defendants.

MEMORANDUM

DAVIS, District Judge.

This is a personal injury action instituted in state court and removed to this court by Defendant, The Flintkote Company ("Flintkote"). Now pending is Plaintiff's "Motion to Remand and for Assessment of Costs and Fees." The motion has been fully briefed and no hearing is needed. The motion shall be granted in part and denied in part.

There is no material dispute as to the facts or the procedural history surrounding this matter. On March 28, 2001, Plaintiff, who allegedly suffers from mesothelioma contracted as a result of occupational exposure to asbestos, filed damages claims against 24 defendants, including nondiverse defendants, in the Circuit Court for Baltimore City. Flintkote was not joined in the original complaint. Rather, Flintkote was added many months later by a Fourth Amended Complaint filed on or about January 11, 2002. Ultimately, after the filing of a Seventh Amended Complaint on or about April 24, 2002, Plaintiff had filed suit against 35 defendants, adding and dismissing various defendants for over a year. A jury trial is scheduled to begin in state court at the end of October 2002.

Plaintiff was deposed on June 4, 2002. In the course of his deposition, he identified, with considerably more clarity and certainty than he had in his responses to earlier written discovery, the entities against whom he had admissible evidence. Accordingly, Flintkote removed the case to this court on June 17, 2002, asserting in its notice of removal that it had properly obtained the consent of all remaining, non-nominal parties. Plaintiff timely filed the pending motion to remand.

Plaintiff contends that the removal was improper as 28 U.S.C. § 1446(b) specifically prohibits removal of a lawsuit on the basis of diversity of citizenship if more than one year has elapsed since the "commencement of the action." Indisputably, Plaintiff filed this case in state court on March 28, 2001, and Flintkote filed its notice of removal on June 17, 2002. According to Plaintiff, Flintkote's motivation in removing the case is to continue the "pattern of bad-faith obstruction and delay" which has allegedly characterized Flintkote's involvement since it was joined as a defendant. Mot. to Remand and for Assessment of Costs and Fees ¶ 7; see id. ¶¶ 7-10. Plaintiff argues that Flintkote is attempting to delay this case "in the hope that the plaintiff, who is dying of mesothelioma, will be unable to have his case heard during his lifetime." Id. ¶ 12.

Flintkote responds with two arguments. First, it contends that under 28 U.S.C. § 1446(b), the one-year period for removal on the basis of diversity of citizenship does not accrue until the defendant effecting removal is first brought into the case, and not when the case is first filed in state court. Accordingly, it contends, this action was timely removed because it was "commenced" less than a year before Flintkote removed the case to this court. That is, the one-year period accrued when Plaintiff filed his Fourth Amended Complaint (joining Flintkote as a defendant) on or about January 11, 2002. Second, and in the alternative, Flintkote argues that even if the one-year period accrued upon the filing of the case in state court against defendants other than Flintkote, the statutory one-year provision is a "procedural" and not a "jurisdictional" requirement. Accordingly, Flintkote contends, because Plaintiff engaged in inappropriate procedural legerdemain intending to defeat Flintkote's right to remove the case to federal court (as allegedly evidenced by Plaintiff's myriad amended complaints, his joinder of nominal parties, his unjustified delay in joining Flintkote, and his failure to be forthcoming in his responses to written discovery), the court should exercise its discretion to ameliorate the "unjust" result—remand to state court—mandated by straightforward application of the statutory one-year requirement.

The statute, 28 U.S.C. § 1446(b), provides as follows, in part:

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 defendant if such initial pleading has then been filed in court and is not required to be served on 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 papers 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.

A party seeking removal based on diversity of citizenship must thus comply with two time restrictions. First, a party seeking to remove must file its notice of removal within 30 days of receipt of an initial pleading or, if the case is not removable based upon an initial pleading, within 30 days of ascertaining, through an "amended pleading, motion, order or other paper," that the case is removable. See Gray v. Rite Aid Corp., 189 F.Supp.2d 347, 348 (D.Md.2002). (Plaintiff does not seriously question Flintkote's compliance with the 30-day requirement.) Second, when diversity of citizenship is the basis of removal, the case must be removed within one year "after commencement of the action." 28 U.S.C. § 1446(b).

Flintkote argues that this action commenced upon the filing of the Fourth Amended Complaint; Plaintiff contends that the action commenced upon the filing of the initial complaint. The key question for courts regarding removal under § 1446(b) has been when an action commences for the purposes of the statute. Zumas v. Owens-Corning Fiberglas Corp., 907 F.Supp. 131, 132 (D.Md.1995). "Courts 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 133. Under Maryland law, a civil action commences "by filing a complaint with a court." Id. (citing Maryland Rule of Civil Procedure 2-101(a), presently Md. R. 3-101(a)). Thus, under Maryland law, service of process upon a defendant is not a requirement for the "commencement" of an action.

Despite the clarity of Maryland law as described above, which Flintkote does not and cannot dispute, Flintkote attempts to craft an argument based on Williams v. Hofmann Balancing Techniques, Ltd., 139 Md.App. 339, 776 A.2d 4 (2001), cert. denied sub nom. Perfect Equiptment v. Williams, 367 Md. 385, 788 A.2d 199 (2002), namely, that an amended complaint that adds a new party does not "relate back" to the initial complaint. In Williams, the plaintiff filed a complaint against some defendants one day before the statute of limitations barred the action. Id. at 6. Thereafter, well after limitations had run, the plaintiff filed an amended complaint adding defendant Perfect Equipment Corporation. Id. Predictably, the plaintiff contended that the amended complaint simply corrected a misnomer, permitting his claims against the newly-added defendant to relate back to the filing of the initial complaint, thus avoiding the limitations bar. Equally predictably, Perfect Equipment, the newly-added defendant, argued that the amended complaint added a new party and did not, therefore, "relate back."

The court held on the facts of that case that the amended complaint merely corrected a misnomer, and, reversing the lower court, concluded that the suit was commenced within the applicable period of limitations against the newly-added defendant through the relation back doctrine. Id. at 17. Apparently, Flintkote would argue broadly from Williams that "Maryland law does not hold that an amendment to a Complaint, adding a new party, relates back to the date of filing of the original Complaint unless critical considerations are met, including the absence of prejudice to the newly-added party if the date of the commencement of the action is to be deemed the date of the original Complaint." Flintkote's Mem. at 9-10 (citing Williams, 776 A.2d at 24). Scrutinizing this sentence is a challenge, but in any event, Williams is plainly inapplicable to the present case, as it merely addresses the relation back doctrine in respect to a limitations defense. See Williams, 776 A.2d at 6. ("This case presents the issue of whether an amended complaint, for purposes of the statute of limitations, relates back to the date of filing of the original complaint."). William...