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Civil Procedure – Removal – Remand – Auto Accident Case

A Richmond U.S. District Court denies plaintiff’s motion to remand her personal injury action to state court, rejecting her argument that removal came too late because it occurred more than one year after commencement of the action, i.e., the date on which the original unserved complaint was filed in state court.

Plaintiff filed her original complaint on May 20, 2009 in Richmond Circuit Court, 11 days before expiration of the two-year statute of limitations. The complaint reflected diversity of citizenship and sought damages sufficient to permit the exercise of diversity jurisdiction. However, plaintiff never served the complaint on any defendant. Instead, approximately one year later, plaintiff sought and was granted, leave to file an amended complaint pursuant to which she increased the ad damnum.

The court granted that motion May 10, 2010, and on May 13, 2010, plaintiff served the amended complaint on the corporate defendants, and on the individual defendant on May 27, 2010. Defendants removed the action to federal court.

The court denies plaintiff’s motion to remand the case to state court. Without doubt, the notice of removal here was filed more than one year after plaintiff filed her original complaint. It is undisputed the original complaint disclosed diversity jurisdiction as to citizenship and as to the amount in controversy. It is also undisputed that plaintiff never served the original complaint. Likewise, it is undisputed that the notice of removal was filed less than 30 days after plaintiff served defendants with the amended complaint.

Plaintiff’s argument goes like this. Commencement of an action in state court is governed by Virginia Supreme Court Rule 3:2, which provides that a civil action is commenced by filing a complaint in the clerk’s office at which time the action is instituted and pending. That much is true. The next point is that the notice of removal was filed more than one year after the action was commenced (the date when the original, but never served, complaint was filed) and that, therefore the case was improperly removed.

In Murphy Bros. Inc. v. Michetti Pipe Stringing Inc., 526 U.S. 344 (1999), the Supreme Court held that the time for removal was triggered by service of process which, in this case, occurred less than 30 days before removal. Of course, it is undisputed that the original complaint (which, on its face, recited the presence of diversity jurisdiction) was never served; and thus, under Murphy Bros., it could not trigger the time for removal. It is likewise undisputed that removal occurred within a timely fashion after the amended complaint was served.

Decisions in Sheppard v. Wire Rope Corp., 777 F. Supp. 1285 (E.D. Va. 1991) and in Saunders v. Wire Rope Corp., 777 F. Supp 1281 (E.D. Va. 1991), both reach the conclusion that the second paragraph in § 1446(b) was procedural rather than jurisdictional. Thus, even if the second paragraph applied here (which it does not), the requirements of the statute can be waived if a plaintiff acts improperly in an effort to defeat a defendant’s right of removal Sheppard was correctly decided and, because the decision in Murphy Bros. makes quite clear that the time for removal does not begin until service is obtained, that decision underscores the validity of the principles upon which Sheppard and Saunders were decided.

Motion to remand denied.

Pair v. Welco-CGI Gas Technologies LLC (Payne, J.) No. 3:10cv388, Oct. 19, 2010; USDC at Richmond, Va. VLW 010-3-554, 8 pp.

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