234 F. Supp. 3d 1165
N.D. Ala.2017Background
- AMWCF (subrogee) sued P.R. Diamond and later added General Tool in state court for tort claims arising from a saw blade injury; original suit filed July 10, 2013; General Tool added July 16, 2015.
- General Tool was served July 20, 2015 and removed the case to federal court on August 19, 2015 based on diversity jurisdiction.
- General Tool’s notice of removal stated that P.R. Diamond had consented, but did not attach consent; P.R. Diamond filed a written consent on September 1, 2015 (13 days after removal).
- AMWCF moved to remand, arguing (1) lack of timely unanimity/consent under 28 U.S.C. § 1446(b), (2) removal after the one-year bar in § 1446(c)(1), (3) prohibition on removing “workmen’s compensation” cases under § 1445(c) because suit invoked Ala. Code § 25-5-11(d), and (4) P.R. Diamond waived removal by litigating venue and engaging in discovery.
- The court found federal diversity jurisdiction undisputed, construed P.R. Diamond’s later-filed consent as an amendment under 28 U.S.C. § 1653, and denied remand on all four grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Rule of unanimity under § 1446(b)(2)(A) | P.R. Diamond’s consent was filed 13 days late, so joinder requirement unmet and removal defective | General Tool alleged in its notice that it had obtained consent before 30-day window closed; later-filed consent shows consent existed | Court: Allegation alone insufficient, but § 1653 allows amendment; P.R. Diamond’s later consent cures defect, so removal stands |
| 2) One-year limitation under § 1446(c)(1) | Removal occurred more than one year after original filing, so barred | One-year bar applies only to cases that were not removable at commencement; this case was removable originally | Court: § 1446(c)(1) does not apply; removal timely |
| 3) § 1445(c) (workmen’s compensation removal bar) | Suit arises under Alabama Worker’s Compensation Act (Ala. Code § 25-5-11(d)), so § 1445(c) prohibits removal | Plaintiff’s substantive claims are common-law torts/contract; § 25-5-11(d) merely permits subrogee to bring suit | Court: Claims arise under state tort/contract law, not the workers’ compensation statute; § 1445(c) does not bar removal |
| 4) Waiver by P.R. Diamond | P.R. Diamond manifested intent to litigate in state court (venue motion, discovery), so waived removal/right to consent | Even if P.R. Diamond waived its own right, the last-served rule permits an earlier-served defendant to consent to a later-served defendant’s removal; denying consent would unfairly bind General Tool | Court: P.R. Diamond’s conduct does not prevent it from consenting to General Tool’s removal; no waiver that defeats removal |
Key Cases Cited
- Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir.) (adopts last-served rule and timing for consent under § 1446)
- Reed v. Heil Co., 206 F.3d 1055 (11th Cir.) (retaliatory discharge claims arise under workers’ compensation law for § 1445 purposes)
- Brown v. Tokio Marine & Fire Ins. Co., 284 F.3d 871 (8th Cir.) (one-year removal limitation applies only to cases not initially removable)
- Arthur v. E.I. DuPont de Nemours & Co., 58 F.3d 121 (4th Cir.) (tort claims tied to worker’s comp statutes do not necessarily arise under those statutes)
- Caterpillar Inc. v. Lewis, 519 U.S. 61 (U.S.) (discussion of one-year diversity removal bar in broader context)
- Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294 (11th Cir.) (§ 1653 permits curing defective jurisdictional allegations about citizenship)
- Beard v. Lehman Bros. Holdings, Inc., 458 F. Supp. 2d 1314 (M.D. Ala.) (consent must be communicated to the court; mere assertion may be insufficient)