Opinion
Civil Action No: 00-3393 c/w, 02-1208 Section: "J"(4)
June 18, 2002
ORDER AND REASONS
Before the Court is the Motion to Remand to Civil District Court for the Parish of Orleans filed by plaintiff, Irvy E. Cosse, Jr. (Rec. Doc. 15.) Defendants oppose the motion. The motion, set for hearing on June 19, 2002, is before the Court on briefs without oral argument. For the reasons that follow, the Court concludes that the motion should be GRANTED.
BACKGROUND
On November 3, 1999, plaintiff, a Louisiana resident, drove into a parking lot owned and operated by the defendant, and while attempting to park, hit a concrete barrier. Plaintiff filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, on October 6, 2000, against APCOA Standard Parking, Inc. and Federal Insurance Company. APCOA Standard Parking, Inc. is incorporated under the laws of Delaware with its principal place of business in Illinois, and Federal Insurance Company, a foreign insurer, maintains its principal place of business in New Jersey. In his petition, plaintiff seeks damages for "severe and disabling personal injuries" and property damages resulting from the accident.
On November 15, 2000, defendants removed the case to this court based upon diversity of citizenship and an amount in controversy exceeding $75,000, pursuant to 28 U.S.C. § 1332. However, on March 6, 2001, following the submission of evidence by all parties, this Court remanded the case to state court because defendants failed to show plaintiff's claims likely exceeded the required amount in controversy. Plaintiff had only incurred a total of $7,000 in medical expenses at the time of removal.
On August 3, 2001, plaintiff filed a Supplemental and Amending Petition in state court, adding Jung Realty Co., Inc., a Louisiana corporation, as a defendant. As a result, there was no longer diversity of citizenship among the parties. However, Jung Realty filed a Motion for Summary Judgment, which was granted on March 22, 2002, and it was dismissed from the action with prejudice.
During the interim between when the Court originally remanded the case and Jung Realty was dismissed from the suit in state court, plaintiff incurred $31,000 in additional medical expenses. Following Jung Realty's dismissal from this action and in light of the additional medical expenses incurred by the plaintiff, the defendants filed a second Notice of Removal on April 22, 2002. In their Notice of Removal, the defendants argue that removal is proper because it was filed in a timely manner after the dismissal of the non-diverse party and because the plaintiff's medical expenses have risen substantially.
The plaintiff responded with a Motion to Remand, filed on May 21, 2002, which is currently before the Court. In his motion, plaintiff argues that the amount in controversy should only be determined based upon the facts at the time the complaint was originally filed. Plaintiff also argues that the additional expenses incurred after the remand to state court were not within his control and that, nevertheless, these expenses are irrelevant because the amount in controversy at the time the complaint was filed was not in excess of $75,000.
DISCUSSION
The procedural requirements for removal are outlined in 28 U.S.C. § 1446. Of primary importance to the Court in this matter is the one year limitation on filing a notice of removal found in subsection (b) of that statute, which provides:
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 . . .
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).
The "except" clause contained in § 1446(b) places a one-year limitation on the length of time one has to file a timely, proper notice of removal. In Badon v. R. J. R. Nabisco Inc., et. al., 224 F.3d 382, 390 (5th Cir. 2000), the Fifth Circuit explained that the first paragraph of section § 1446(b) provides the general rule that a defendant has thirty days from being served within which to file a notice of removal. The court further explained that the second paragraph of subsection (b), which contains the "except" clause, provides for an extended time to file a notice of removal in a case not originally removable, commencing the thirty day period upon a defendant's notice by "an amended pleading, motion, order or other paper" that the case has since become removable. Id. However, the court concluded that section 1446(b) "says in effect that the extended time for filing notice of removal provided for in the second paragraph is not available for removal on the basis of diversity if the case was commenced more than one year before the removal." Id. (emphasis added). "We have clearly held that the `except' clause applies only to cases governed by the second paragraph of section 1446(b), "i.e. only to cases that are not initially removable.'" Id. at 389. See also Johnson v. Heublein, Inc., 227 F.3d 236, 241 (5th Cir. 2000) ("the second paragraph applies to those cases which are not removable originally but become removable at a later time, and the one-year limitation on removals applies only to the second paragraph of that section, i.e., only to cases that are not initially removable").
While, defendants rely upon Johnson to argue that the second notice of removal in this case was timely, in the Johnson case the Fifth Circuit found that the case was originally removable in the first place so that it was not governed by the second paragraph of section 1446(b) or the one-year limitation. See Johnson, 227 F.3d at 241. In the present matter, this Court has already held that plaintiff's case was not removable as originally filed. (Rec. Doc. 13.) Accordingly, the one-year limitation provided in the second paragraph of subsection (b) governs this case.
Plaintiff originally filed his petition in state court on October 6, 2000. Defendants filed the second notice of removal on April 22, 2002. The second removal is clearly untimely since it was filed more than one year after the commencement of this case. Therefore, removal is not proper, and the case should be remanded to the Civil District Court for the Parish of Orleans.
Accordingly;
IT IS ORDERED that the plaintiff's Motion to Remand (Rec. Doc. 15) is GRANTED, and the case is remanded to the Civil District Court for the Parish of Orleans.