Opinion
A3-02-136
February 7, 2003
MEMORANDUM ORDER
I. Introduction
This case was removed to this Court by defendant Trojan Battery Company ("Trojan") on November 26, 2002. Before the Court is a motion by Plaintiff, Lidgerwood Public School ("Lidgerwood"), to remand the case back to state court. (Doc. #18.) All defendants resist this motion. (Docs. #22, #23, #24.) As explained below, this motion is GRANTED. (Doc. #18.)
II. Background
The facts of this action are relatively straightforward. An August 29, 1999 fire damaged property at Lidgerwood Public School. Lidgerwood alleges that the cause of this fire was a defective floor scrubber unit that was sold by Cole Papers and manufactured by defendant National Super Service Company ("NSS"). Lidgerwood's Complaint identifies defendant Lester Electrical Inc. ("Lester") as the manufacturer of the battery charger and Trojan as the manufacturer of the batteries for the scrubber unit.
For the purposes of this motion, many of the relevant facts concern the procedural history of this case, which began on April 4, 2001, with the service of a summons and complaint upon Cole Papers and NSS. On June 27, 2001, Lidgerwood filed an action in the District Court for the State of North Dakota, Southeast Judicial District, Richland County, against Cole Papers and NSS. At that time, there was not complete diversity between the parties; although NSS is an Ohio corporation, both Lidgerwood and Cole Papers are citizens of North Dakota. Later, Lester, a Nebraska corporation, and Trojan, a California corporation, were added as defendants.
On November 15, 2002, the state court orally granted Cole Paper's motion for summary judgment; a written order, filed on December 4, 2002, followed. The North Dakota Products Liability Act provided the basis for the dismissal of Cole Papers by the state court. (Order, exh. B, doc. #20.) This Act provides that in any products liability action, once the plaintiff has filed a complaint against the manufacturer of the allegedly defective product, the seller of the product shall be dismissed from the lawsuit unless the plaintiff can show some sort of knowledge or culpability on the part of the seller as to the alleged defect. N.D. Cent. Code 28-01.3-04 (Supp. 2001).
The dismissal of Cole Papers provided complete diversity between the parties. As a result, Trojan filed a Notice of Removal with this Court on November 26, 2002, to which defendants NSS and Lester concurred (docs. #13, #14). Lidgerwood objects to this removal, contending that Trojan did not comply with the requirements of 28 U.S.C. § 1446(b), which provides for the removal of cases initially not removable "except that a case may not be removed . . . more than 1 year after commencement of the action."
Lidgerwood argues that, because Trojan filed its notice of removal more than 19 months after the service of its original summons and complaint, Trojan's notice of removal was filed over one year after the commencement of the action and, therefore, is untimely. On the other hand, Trojan contends that the action did not commence as to it until November 29, 2001, the date it signed for certified mail containing the amended complaint and summons. Because it filed its notice of removal just short of one year later, on November 26, 2002, Trojan argues, it filed its notice of removal within one year of the commencement of the action. In any event, Trojan argues that the one year time limit does not apply to it because it argues that Cole Papers was fraudulently joined.
III. Analysis
Section 1446 of Title 28, United States Code, provides the procedure for removal. Pertinent to this motion is subsection (b), 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the 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 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.
The first paragraph of subsection (b) applies to cases that were removable to federal court when originally filed, and the requirements of the second paragraph apply only to cases that were not removable to federal court when originally filed. Brown v. Tokio Marine and Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002).
Since fraudulent joinder of a non-diverse defendant does not prevent removal, the Court can conclude that the first paragraph of subsection (b) applies when a court deems a non-diverse defendant to be fraudulently joined. Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983). The first paragraph of subsection (b) provides that a defendant file a notice of removal within thirty days after the service of the summons upon the defendant. It is undisputed here that Trojan filed its notice of removal more than thirty days after receiving service of a summons; the notice of removal was filed on November 26, 2002, and Trojan received service of a summons and amended complaint on November 29, 2001. Therefore, defendant's claim is time-barred, and the Court need not discuss the issue of whether Cole Papers was fraudulently joined.
Even if the Court concluded that fraudulent joinder cases fall within the second paragraph of subsection (b), and some courts do, Trojan is foreclosed from removing pursuant to this paragraph because of the one-year limitation. While Trojan argues that the term "commencement of the action" is specific to each individual defendant, the Court's research has revealed that all of the courts that have squarely addressed this issue have held that "commencement of the action" refers to the date on which the case originally commenced. See, e.g., Norman v. Sundance Spas, Inc., 844 F. Supp. 355, 358-60 (W.D.Ky. 1994).
Trojan contends that the determination of when an action "commences" is governed by state law. The North Dakota Rules of Civil Procedure provide that an action is commenced upon the service of a summons. N.D. R. Civ. P. 3. Therefore, Trojan creatively argues, no action was commenced against it until November 29, 2001, when it was served with a summons.
It is not settled that state law answers the question of when an action is commenced. See Norman v. Sundance Spas, Inc., 844 F. Supp. 355, 357 (W.D. Ky. 1994) ("[T]he Court must construe the phrase `commencement of the action.' It is not too elementary to suggest that the source of this inquiry is federal law.") (citation omitted). But, even if it was, the Court must reject Trojan's argument. Although state law may determine when an action "commences," federal courts, as interpreters of the federal statute, must determine what is an "action" or, put another way, whether the term "action" is viewed from a plaintiff's perspective or from a defendant's. As explained above, several federal courts have addressed this issue, and they have all concluded that "action" is viewed from the perspective of the plaintiff.
Not only is Trojan time-barred from removing this case, the "voluntary-involuntary" rule prevents removability as well; although seemingly contrary to the language of the second paragraph of 1446(b), the Eighth Circuit has held that a previously nonremovable case cannot become removable based upon an involuntary dismissal as to the plaintiff. In re Iowa Mfg. Co. of Cedar Rapids, Iowa, 747 F.2d 462, 463 (8th Cir. 1984). This rule is explained as follows:
If the dismissal of a defendant in state court creates complete diversity between all parties so that the case may be removed to federal court, the propriety of removal is determined according to whether the dismissal was voluntary or involuntary with respect to the plaintiff. In other words, if the plaintiff voluntarily dismisses the non-diverse defendant, the case may be removed. Removal is improper, however, if the dismissal of that resident defendant was involuntary.
Id. The dismissal of Cole Papers on summary judgment was involuntary as to Lidgerwood. Id. at 463. "[A]n involuntary dismissal cannot change a previously unremovable case into a removable case." Id. Therefore, the "voluntary-involuntary" rule precludes removal.
IV. Conclusion
For all of the reasons above, removal is improper in this case. Moreover, the Court has great confidence in the state court's ability to handle this case; since the case has been pending there well over a year, the state court will be in a position to handle this case more expeditiously than this Court. Accordingly, IT IS ORDERED that this action is hereby REMANDED to North Dakota State District Court, Southeast Judicial District, County of Richland.
IT IS SO ORDERED.