Opinion
Case No. 02-CV-2103-JAR
June 25, 2002
MEMORANDUM ORDER GRANTING MOTION TO REMAND
Plaintiffs Alexis and Aleasha Haines filed a Motion to Remand pursuant to 28 U.S.C. § 1447 based on procedural defects and lack of complete diversity jurisdiction. Defendants Procter Gamble Manufacturing Company (P G), Watkins Engineers (Watkins) and Construction Design, Inc. (CDI) argue that they have complied with the procedural requirements for removal, and that there is complete diversity because Defendant CDI was fraudulently joined. Because the notice of removal was not timely filed, Plaintiffs' Motion to Remand is granted.
Motion to Remand
Motions to remand pursuant to 28 U.S.C. § 1447 provide the non-removing party with a mechanism to challenge the removal of a case to federal court. Such motions must be made within thirty days after the filing of the notice of removal under 1446(a). Defendants' Notice of Removal was filed on March 7, 2002; and Plaintiffs' Motion to Remand was filed on April 8, 2002, within the thirty-day period. Timely motions to remand will be granted if there is a defect in the removal procedural such as untimely notice of removal, or failure to comply with the requirements of § 1446(b). Lack of subject matter jurisdiction also provides a proper basis for remand.
McShares, Inc. v. Barry, 979 F. Supp. 1338, 1341 (D.Kan. 1997).
Timeliness of Notice of Removal
A defendant must file a notice of removal within thirty days after the receipt of the original pleading. However, if the case stated by the original pleadings is not removable, notice may be filed within thirty days of receipt of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable. No case may be removed based on diversity more than one year after commencement of the action. Plaintiffs filed their original petition on March 8, 2001, and Defendants filed their Notice of Removal on March 7, 2002, within one year from the date of commencement of the action.
Id.
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 69 (1996).
The case as initially filed was not removable because of the lack of complete diversity jurisdiction. Subsequently, all non-diverse defendants except CDI were dismissed. Defendants claim CDI is only being kept in the case to avoid diversity jurisdiction and was fraudulently joined. For the purposes of § 1446(b), it is necessary to determine when Defendants could have first ascertained that the case was removable due to CDI's fraudulent joinder, to wit: when the fact of CDI's fraudulent joinder was not ambiguous or did not require "an extensive investigation to determine the truth." Only when Defendants could have first ascertained the fraudulent joinder of CDI, did the thirty-day clock begin to run.
DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir. 1979).
Defendants claim they could not unequivocally ascertain removability until Plaintiffs answered interrogatories stating the facts upon which their claims against CDI were based. Because these answers were not served until February 8, 2002, Defendants argue the thirty-day period did not begin running until February 8. Plaintiffs counter that Defendants could ascertain removability when Plaintiffs' experts were deposed on January 28, or alternatively, at the time CDI filed its second Motion for Summary Judgment on January 31, 2002. Thus, Plaintiffs claim the thirty-day period began running on January 31 at the latest.
It is telling, that Defendants' motion to dismiss for fraudulent joinder, relies on the absence of adverse expert opinions regarding CDI. If the depositions of Plaintiffs' experts provided a basis for the Defendants' motion to dismiss, then the depositions were surely sufficient to put Defendants on notice of CDI's possible misjoinder. Indeed, it is well-settled that answers to questions at depositions may constitute the "other paper" necessary to give notice that the action has become removable. The depositions of Plaintiff's experts were taken on January 28, and gave Defendants unambiguous and unequivocal notice of the fraudulent joinder on that date. The Notice of Removal must have been filed within 30 days, no later than February 26. The Notice of Removal, filed March 7, was untimely. Remand is required when the defendant fails to timely file the notice for removal. This limitation is strictly enforced. Thus, Plaintiffs' Motion to Remand must be granted.
Van Gosen v. Arcadian Motor Carriers, 825 F. Supp. 981, 982 (D.Kan. 1993) (J. Van Bebber).
Booth Theatre Found., Inc. v. McKiernan, 1994 WL 114305 at *1 (D.Kan.).
Id.
Plaintiffs also claim CDI waived its right to removal when it filed its first Motion for Summary Judgment in state court. Waiver does not occur when there is an absence of notice of the right to remove. See Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998). Because Defendants were not aware of the possibility of fraudulent joinder and removal at the time of CDI's motion, no waiver occurred.
Attorneys Fees and Costs
Plaintiffs seek costs and attorneys' fees from Defendants pursuant to 28 U.S.C. § 1447(c). Section 1447 provides that "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The assessment of fees and costs under this section is purely discretionary. The propriety of removal is the central issue in deciding whether to allow expenses and costs. Because the Court finds in its discretion that Defendants had a fair basis for removal and sought it in good faith, it denies Plaintiffs' Request for Attorneys Fees and Costs.
Kimbrell v. Hall-Kimbrell Envtl. Services, Inc., 1990 WL 192749 at *3 (D.Kan.) (J. Rogers).
McShares, Inc. v. Barry, 979 F. Supp. 1338, 1344 (D.Kan. 1997).
In response to Plaintiffs' request for fees, Defendants have also asked the Court to impose fees based on inaccuracies supposedly contained in Plaintiffs' pleadings and the "false argument" based on the one-year rule for removal. The Court does not find that these inaccuracies rise to the level warranting monetary sanctions.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs Alexis and Aleasha Haines' Motion to Remand pursuant to 28 U.S.C. § 1447 due to procedural defects and lack of subject matter jurisdiction is GRANTED.