Opinion
NO. 3-02-CV-0354-R
May 13, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Intervenors Mary Odom, Ann Brown-Caldwell, Latasha Newton, and Robin Terrell have filed a motion to remand this case to state court. The motion has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636(b) and an order of reference dated April 29, 2002.
I.
Plaintiff Roger Ward — San Antonio, Inc. ("Ward") is a company that offers moving and relocation services to clients throughout the United States. (Not. of Rem., Exh. 2 at ¶ 6). Defendant Joyce Leann Miles ("Miles") worked for Ward in its North Texas office. ( Id., Exh.2 at ¶ 7). From 1999 until her abrupt resignation in June 2001, Miles allegedly diverted automobile shipping contracts from Ward to a competitor in exchange for money commissions, or "kickbacks." ( Id., Exh. 2 at ¶¶ 9-12). She also falsified her time records and used the company's Federal Express account to ship prescription drugs through interstate commerce for personal reasons. ( Id., Exh. 2 at ¶¶ 13-17).
On September 7, 2001, Ward sued Miles in state district court for conversion and fraud. (Id., Ext. 2 at ¶¶ 19-23). Miles filed an answer and counterclaim for intentional infliction of emotional distress and defamation. ( Id., Exh. 3). While the state court action was pending, the parties engaged in settlement negotiations and resolved their dispute. A written settlement agreement was executed on December 24, 2001 which called for the dismissal and mutual release of all claims and causes of action. ( Id., Exh. 7).
After this settlement agreement was executed but before the state court action was formally dismissed, Mary Odom, Ann Brown-Caldwell, Latasha Newton, and Robin Terrell filed a plea in intervention. ( Id., Exh. 5). Intervenors, who are all former Ward employees, assert various claims of race or sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. On February 20, 2002, Ward timely removed the case to federal court. ( Id.). Intervenors now seek an order of remand. The motion has been briefed by the parties and is ripe for determination.
II.
Intervenors argue that this case was improperly removed because: (1) a plaintiff may not initiate removal in response to a counterclaim; and (2) Miles did not consent to the removal. At least the first of these arguments is well-taken. 28 U.S.C. § 1441 (a) (providing that state court case over which federal courts would have original jurisdiction "may be removed by the defendant or the defendants") (emphasis added); see also Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 106-07, 61 S.Ct. 868, 871-72, 85 L.Ed. 1214 (1941) (interpreting section 1441(a) to preclude removal by a plaintiff based on defendant's counterclaim); Mourik International B. V. v. Reactor Services International, Inc., 182 F. Supp.2d 599, 602 (S.D. Tex. 2002) (same).
However, intervenors have waived their right to contest these procedural defects. A motion to remand on the basis of a defect other than lack of subject matter jurisdiction "must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447 (c). Intervenors did not file a motion to remand until March 25, 2002 — 33 days after Ward filed its notice of removal. Accordingly, their motion is untimely. See Green Tree Financial Corp. v. Arndt, 72 F. Supp.2d 1278, 1284 (D.Kan. 1999) (motion to remand based on improper removal by plaintiff/counter-defendant must be filed within 30 days after notice of removal is filed); Rashid v. Schenck Construction Co., 843 F. Supp. 1081, 1085 (S.D. W.Va. 1993) (same as to remand motion based on failure of all defendants to consent to removal).
Although Rule 6(e) of the Federal Rules of Civil Procedure allows an additional three days to respond when documents are served by mail, that rule applies only when "a party is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper . . ." FED. R. Civ. P. 6(e) (emphasis added). The time period for filing a motion to remand runs from the date the notice of removal is filed, not served. See 28 U.S.C. § 1447(c). Consequently, Rule 6(e) is not applicable. See, e.g. Lewis v. Certainteed Corp., 870 F. Supp. 130, 132 (E.D. L.a. 1996); Graef v. Chemical Leaman Tank Lines, 860 F. Supp. 1170, 1175 n. 7 (E.D. Tex. 1994); Rashid, 843 F. Supp. at 1084.