ORDER
This cause is before the Court on the following:
1. Plaintiffs Motion for Remand (Doe. 16), filed April 29, 2013;
2. Defendant’s Response in Opposition to Plaintiffs Motion for Remand and Memorandum of Law in Support (Doc. 19), filed May 16, 2013; and
3. Plaintiffs Reply to Defendant’s Response in Opposition to Plaintiffs Motion for Remand (Doc. 24), filed May 31, 2013.
BACKGROUND
In November 2009,
Plaintiff then sought leave to amend her complaint to add a bad faith claim in light of the verdict on the UM claim. (Doc. 1-3, pp. 3-4.) Before leave was granted, Defendant filed a notice of removal. (Doc. 16-7.) Plaintiff moved to remand (Doc. 16-8), which the Court granted after Defendant withdrew its opposition. (Doc. 16-9.) On March 11, 2013, the state court granted Plaintiffs motion to amend to add the bad faith claim. (Doc. 1-3, p. 9.) On March 28, 2013, Defendant filed another notice of removal with this Court based on diversity jurisdiction. (Doc. 1.) Plaintiff moved to remand. (Doc. 16.) Defendant opposed. (Doc. 19.) Plaintiff replied. (Doe. 24.)
STANDARDS
28 U.S.C. § 1446 provides that a defendant may only remove within thirty days of receiving the initial pleading or service of summons. In a case not originally removable, a defendant may only remove within thirty days of receiving “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which ... has become removable.” 28 U.S.C. § 1446(b)(3). However, a case removed based on diversity jurisdiction that was not initially removable may not be removed more than one year after the commencement of the action. Id. § 1446(c)(1).
Despite a defendant’s statutory right to remove, the “plaintiff is still the master of his own claim,” and the “defendant’s right to remove and [the] plaintiffs right to choose his forum are not on equal footing.” Burns v. Windsor Ins. Co.,
Defendant contends that this case was not initially removable and only became removable after the bad faith claim ripened. (Doc. 19, pp. 4-7.) Defendant thus argues that it timely removed within thirty days of the state court’s order permitting Plaintiff to add the bad faith claim. (Id. at 5-10.) Defendant also argues that the bad faith claim is a “separate and independent cause of action” and thus constitutes an initial pleading of its own such that the one-year limitation on cases that are not initially removable does not apply. (Id. at 7-9, 10-11.) Defendant further avers that if the Court determines that this case was initially removable, the addition of the bad faith claim the second time around “revived” Defendant’s right to remove, such that the timeliness provisions of § 1446 were reset. (Id. at 4, 11-14.)
This case was not timely removed and remand is therefore required. This case was not initially removable because the amount in controversy requirement of 28 U.S.C. § 1332 was not met due to the $25,000 policy limit.
Under Florida law, an action is deemed commenced when the complaint is filed. See Fla. R. Civ. P. 1.050 (stating that a civil action is commenced when the complaint is filed); see also Fed.R.Civ.P. 3 (stating the same). Thus, commencement occurs at the filing of the complaint, and the amendment of the complaint adding a bad faith claim does not commence the action anew. See van Niekerk v. Allstate Ins. Co., No. 12-62368-CIV,
The Court is mindful that this resolution creates a procedural conundrum for insurers, as a plaintiff can move to amend the complaint post-verdict to add a bad faith claim, knowing that a verdict will likely take more than one year to be rendered. That may be, but Congress placed limits on federal courts’ jurisdiction to hear cases arising under state law as a matter of comity. While the one-year time limit may seem “arbitrary and unfair,” such a limitation is “an inevitable feature of a court system of limited jurisdiction that strictly construes the right to remove.” Russell Corp. v. Am. Home Assurance Co.,
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Plaintiffs Motion for Remand (Doc. 16) is GRANTED.
2. This case is REMANDED to the Circuit Court of the Eighteenth Judicial Circuit in and for Orange County, Florida.
3. All remaining pending motions are DENIED AS MOOT.
4. All remaining deadlines are TERMINATED.
5. The Clerk is DIRECTED to close this case.
Notes
. The complaint does not contain the date on which it was filed. Plaintiff represents that it was filed on November 18, 2009. (Doc. 16, p. 1.) Defendant represents that it was filed on November 25, 2009. (Doc. 19, p. 2.)
. On December 7, 2011, Congress amended § 1446. Pub.L. No. 112-63, 125 Stat. 758 § 103 (2011). The amendment became effective on January 6, 2012. See id. § 105(a). The amendment applies to “any action ... commenced on or after [the] effective date.” Id. As the instant action commenced before the effective date, the former iteration of § 1446 applies. However, with the exception that a defendant may now remove beyond the one-year period where the plaintiff acted in bad faith to prevent the defendant from removing the action, the substance of the timeliness provisions are the same. Id. § 103.
. While the bad faith claim may have put the amount in controversy over $75,000, it had not accrued and thus was not legally actionable.
. Even if this case was initially removable, the removal would have been untimely because it occurred more than thirty days — in fact, more than three years — after Defendant's receipt of the initial pleading. (See Doc. 1.) While Defendant argues that the amendment of the complaint adding the bad faith claim constitutes a “revival” of Defendant’s right to remove (Doc. 19, pp. 4, 11-14), the Court disagrees. As further discussed below, the amendment of a complaint does not reset the clock for removal purposes.