Opinion
Case No. 2:04-CV-00448 PGC.
July 2, 2004
ORDER DENYING MOTION TO REMAND
This case is before the court on a motion to remand filed by plaintiff David Black. Mr. Black argues that removal was improper because one defendant, Richard Day, had previously filed a motion to dismiss. The court rejects this argument and DENIES the motion to remand
Although the Tenth Circuit has not considered whether a motion to dismiss filed in state court waives a party's statutory right to remove, other courts have concluded that it does not. Furthermore, construing a responsive pleading, such as a motion to dismiss, as waiving any right to remove would prejudice defendants who, as in Utah, are given thirty days to remove and only twenty days to respond to the complaint.
See, e.g., Cogdell v. Wyeth, No. 03-12146, 2004 U.S. App. LEXIS 8144 at *10 (11th Cir. April 26, 2004); Dorazio v. UAL Corp., No. 02-C-3689, 2002 U.S. Dist. LEXIS 18809 at *14 (N.D. Ill. Oct. 2, 2002); Liebau v. Columbia Casualty Co., 176 F. Supp.2d 1236, 1244 (D. Kan. 2001); Hill v. State Farm Mutual Automobile Ins. Co., 72 F. Supp.2d 1353, 1356 (M.D. Fla. 1999).
Mr. Black cites only one case from the Middle District of Florida, Scholz v. RDV Sports, Inc., for the proposition that a defendant who files a motion to dismiss in a state court proceeding waives his right of removal. Although that court found that a motion to dismiss could be "an affirmative use of the state-court process and, thus, distinguishable from actions to maintain the status quo in state court, such as defending preliminary injunctions and filing answers and affirmative defenses," this court is persuaded by the reasoning in the cases cited above. Furthermore, while Scholz suggests there may be times when a motion to dismiss would constitute waiver, neither the Eleventh Circuit nor the Middle District of Florida apparently follow the broad rule articulated by Mr. Black.
821 F. Supp. 1469 (M.D. Fla. 1993).
Id. at 1471.
See Cogdell, 2004 U.S. App. LEXIS 8144 at *10; Hill, 72 F. Supp.2d at 1356.
Accordingly, the court concludes that Mr. Day did not waive his right to remove by moving to dismiss in state court, and the Motion to Remand (#3-1) is DENIED. The Motion to Stay (#10-1) is also DENIED as moot. Mr. Black is directed to respond to all pending motions to dismiss (including any filed in state court) within fourteen days from the date of this order.
SO ORDERED.