855 F. Supp. 2d 662
W.D. Ky.2012Background
- Aug. 2007 motor-vehicle crash injures Riley; negligence claims against Pennycuff and Houchens in Christian County, KY state court.
- OCIC insured Houchens; Riley amended to add OCIC and asserts UCSPA violations and bad-faith claims after initial settlement.
- Initial defendants were Kentucky citizens; thus no diversity at filing.
- Mediation settled negligence claims July 11, 2011; August 24, 2011 amendment added OCIC and dismissed Houchens/Pennycuff.
- OCIC removed to federal court Sept. 13, 2011 citing 28 U.S.C. §§ 1332, 1446; Riley moves to remand arguing § 1446(b)’s one-year bar prevents removal.
- The court grants remand, remanding to state court, applying pre-2012 § 1446(b) interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commencement date for removal resets with a later-added defendant | Riley argues initial filing 2009 commenced action; removal timed by original date. | OCIC argues amended complaint (Aug. 24, 2011) constitutes new commencement reset. | No; commencement does not reset; removal after one year improper. |
| Are §§ 1446(b) and 1441(c) compatible to permit late-date commencement for non-diverse insurers | Riley urges separable-controversy allows later-start for insurer claims. | OCIC relies on 1441(c) to permit removal despite § 1446(b) bar. | No; 1441(c) cannot apply to create multiple commencement dates in this context. |
| Should equitable exception to § 1446(b)’s one-year limit apply | Equitable considerations should not bar remand; timing was not plaintiff’s fault. | Tedford-like estoppel could excuse late removal. | Equitable exception rejected; no estoppel shown. |
| Whether remand is proper given the procedural posture and Kentucky joinder rules | State court rules permitted joindre insurer and tortfeasors in one action. | Removal inappropriate after one year; diversity not timely. | Remand granted; case remanded to state court. |
| Whether prior district decisions relying on § 1441(c) should control | Meador/Ryan should govern due to § 1446(b) interpretation. | Those decisions conflict with controlling authority; should be followed for removal. | Rejects Meador/Ryan lineage; adheres to majority view favoring remand. |
Key Cases Cited
- Norman v. Sundance Spas, Inc., 844 F. Supp. 355 (W.D. Ky. 1994) (held no multiple commencement dates under § 1446(b) even with later-joined defendants)
- Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003) (recognizes equitable estoppel to § 1446(b)’s one-year limit when plaintiff manipulated joinder to defeat removal)
- Easley v. Pettibone Mich. Corp., 990 F.2d 905 (6th Cir. 1993) (state-law commencement controls removal timing; strict construction of removal statutes urged)
- Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999) (advocates narrow construction of removal statutes in diversity cases)
- West v. Visteon Corp., 367 F. Supp. 2d 1160 (N.D. Ohio 2005) (removal statutes resolved in favor of remand in ambiguity)