Opinion
SA-23-CV-40-FB (HJB)
03-01-2023
MARIO ALONSO SAENZ Plaintiff, v. UNITED PARCEL SERVICE, INC., ALADDIN CAPITAL, INC., ABDIKADIR SAID DAHIR, EAGLE TRANSPORT, INC., and UNITED LOGISTICS, LLC Defendants.
Honorable Fred Biery United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad Judge
This Report and Recommendation concerns the Motion to Remand filed by Plaintiff Mario Alonso Saenz. (Docket Entry 16.) Pretrial motions in this case have been referred to the undersigned for consideration. (See Docket Entry 8.) For the reasons set out below, I recommend that Plaintiff's Motion to Remand (Docket Entry 16) be DENIED.
I. Jurisdiction.
Defendant Abdikadir Said Dahir removed this case from state court to this Court, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Docket Entry 1.) I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
This case arises out of a motor vehicle accident between Plaintiff and Defendant Dahir. (Docket Entry 1-2, at 27.) Plaintiff alleges that the vehicle driven by Dahir struck his vehicle and caused his injuries. (Docket Entry 1-2, at 27.) Plaintiff also alleges Dahir was acting in the course and scope of his employment with United Parcel Service, Inc. (“UPS”) and Aladdin Capital, Inc. (“Aladdin”) when the accident occurred. (Docket Entry 1-2, at 27-28.)
Plaintiff filed suit against UPS, Aladdin, and Dahir in Kendall County on August 23, 2021. (Docket Entry 1-2, at 26.) Plaintiff is a citizen of Texas; Dahir is a citizen of Minnesota; and UPS and Aladdin are foreign corporations. (Docket Entry 1-2, at 27.) On January 18, 2022, Plaintiff filed an amended complaint adding Eagle Transport, Inc. (“Eagle”) and United Logistics, LLC (“United”) as defendants. (Docket Entry 1-5, at 2.) Eagle and United are both foreign corporations. (See id.)
Dahir was served on December 9, 2022. (Docket Entry 16-8.) Asserting diversity jurisdiction, Dahir removed the case to this Court on January 9, 2023. (Docket Entry 1.) Plaintiff, believing that Dahir's removal is untimely, filed a motion to remand the case on February 8, 2023. (Docket Entry 16.) Dahir responded in opposition (Docket Entry 17), and Plaintiff did not reply.
III. Analysis.
A defendant may remove a civil action filed in state court to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441(a). District courts have original jurisdiction in cases in which the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). In this case, the parties do not dispute the Court's jurisdiction; instead, they dispute the timeliness of removal.
Title 28 U.S.C. § 1446 sets out the time limits for removal. Three of the statute's provisions are at issue here:
(b)(1) The notice of removal of a civil action or proceeding shall be filed within 30 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 .
(b)(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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.
(c)(1) A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.28 U.S.C. § 1446
Plaintiff argues that Dahir's removal is untimely because the notice of removal was filed more than one year after the commencement of the action, in violation of § 1446(c)(1). (Docket Entry 16, at 1.) However, by its express terms, the one-year limitation set forth in § 1446(c)(1) applies only to cases “removed under subsection (b)(3).” 28 U.S.C. § 1446(c)(1). And subsection (b)(3) describes the situation where the case as originally filed was not removable, but then becomes removable through some later event. 28 U.S.C. § 1446(b)(3). Both the Fifth Circuit and courts within this district have recognized this limitation on the application of § 1446(c)(1). See, e.g., Johnson v. Heublein, Inc. 227 F.3d 236, 241 (5th Cir. 2000); Shaffer v. Green Earth Techs., Inc., No. SA-17-CV-451-XR, 2017 WL 2628883, at *3 (W.D. Tex. June 19, 2017).
This case was not removed under subsection (b)(3), but instead under subsection (b)(1). (See Docket Entry 1, at 3.) Subsection (b)(1) applies because the case was removable from its inception. Plaintiff's original complaint named UPS, Aladdin, and Dahir as defendants. (Docket Entry 1-2, at 12.) The parties to the original complaint were diverse: Plaintiff is a citizen of Texas; UPS and Aladdin are foreign corporations; and Dahir is a citizen of Minnesota. (Id.) The amount in controversy also met jurisdictional requirements, as Plaintiff sought damages in excess of $1,000,000.00. (See Docket Entry 1-2, at 12.) Because subsection (b)(1) applies, Dahir was authorized to file notice of removal within 30 days after receipt of the initial pleading. Dahir's notice of removal was filed within this time limit, and § 1446(c)(1)'s one-year removal limitation does not apply. Because Plaintiff's motion to remand is predicated on the applicability of § 1446(c)(1), the motion should be denied.
IV. Conclusion and Recommendation.
Based on the foregoing, I recommend that Plaintiff's Motion to Remand (Docket Entry 16) be DENIED.
V. Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED.