Littlefield v. Rock-Tenn Southern Container, LLC
MEMORANDUM OPINION AND ORDER denying 5 MOTION to Remand. Signed by Honorable Judge Mark E. Fuller on 7/3/2013. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOHNNY J. LITTLEFIELD,
CASE NO. 2:12-cv-578-MEF
(WO – Do not publish)
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Plaintiff’s Motion to Remand (Doc. #5) and
Defendant’s Memorandum in Opposition to Plaintiff’s Motion to Remand (Doc. #8). For the
reasons set forth below, the Court finds that Plaintiff’s Motion to Remand is due to be
I. PROCEDURAL BACKGROUND
On January 7, 2010, Plaintiff Johnny Littlefield (“Mr. Littlefield”) allegedly slipped
and fell on an iced-over sidewalk at a facility owned by Defendant Rock-Tenn Southern
Container, LLC (“Rock-Tenn”) in Murfreesboro, Tennessee.
Mr. Littlefield brought
negligence and wantonness claims against Rock-Tenn Services, Inc. (“Rock-Tenn Services”)
in the Circuit Court of Barbour County, Alabama on January 5, 2012, seeking compensatory
and punitive damages for his injuries and his inability to continue his employment. RockTenn Services filed an answer and a motion to dismiss in state court, arguing that it did not
own the facility at issue and that the correct defendant to the action was likely Rock-Tenn.
Plaintiff filed an amended complaint in state court on June 5, 2012, which identified RockTenn as the correct defendant in the action. On July 3, 2012, Rock-Tenn filed a Notice of
Removal in this Court. (Doc. #1.) More than two months later, Mr. Littlefield filed a motion
to remand. (Doc. #5.)
II. LEGAL STANDARD AND ANALYSIS
The parties do not dispute that the Court has jurisdiction over this action.1 Mr.
Littlefield instead takes issue with the procedural propriety of removal, claiming that RockTenn filed its notice of removal too late. Rock-Tenn responds that its notice of removal was
timely and counters that Mr. Littlefield’s motion to remand is due to be denied because it was
filed out of time.
The Remand Standard
Federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994); Wymbs v. Republican State Exec. Comm., 719 F.2d 1072, 1076 (11th Cir.
1983). As a result, they only have the power to hear cases over which the Constitution or
Congress has given them authority. See Kokkonen, 511 U.S. at 377. Congress has
empowered the federal courts to hear a case removed by a defendant from state to federal
court if the plaintiff could have brought the claims in federal court originally. See 28 U.S.C.
After an independent inquiry, the Court finds adequate grounds for subject-matter
jurisdiction based on diversity. See 28 U.S.C. § 1332(a) (requiring complete diversity and an
amount in controversy that exceeds $75,000, exclusive of interest and costs).
§ 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). To accomplish a
successful removal, the removing defendant bears the burden of showing that a district court
has subject-matter jurisdiction over an action. See Diaz v. Sheppard, 85 F.3d 1502, 1505
(11th Cir. 1996) (placing burden of establishing federal jurisdiction on the defendant seeking
removal to federal court). And although the Eleventh Circuit favors remand where federal
jurisdiction is not absolutely clear, see Burns, 31 F.3d at 1095, “federal courts have a strict
duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 716 (1996).
The Removal Statutes
The removal statute, 28 U.S.C. § 1441(a), allows a defendant to remove an action
from state to federal court if the plaintiff could have originally brought his claim in federal
court. The statute governing the procedural propriety of removal, 28 U.S.C. § 1446(b),
allows for two types of removable actions: (1) those removable on the basis of an original
pleading, and (2) those that later become removable upon receipt of “a copy of an amended
pleading, motion, order or other paper.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1212
(11th Cir. 2007) (citing 28 U.S.C. § 1446(b)). In both types of cases, “a defendant must
remove within thirty days of receiving the document that provides the basis for removal.”
28 U.S.C. § 1447(c) governs the procedure a plaintiff must follow after a notice of
removal under 28 U.S.C. § 1446(a) is filed. That statute provides that a motion to remand
based on a defect other than lack of subject-matter jurisdiction must be made within thirty
days after the notice of removal is filed. 28 U.S.C. § 1447(c). Because “[u]ntimeliness of
removal is a procedural, instead of a jurisdictional, defect,” In re The Uniroyal Goodrich
Tire Co., 104 F.3d 322, 324 (11th Cir. 1997), petitioning for removal outside of the thirty-day
period is a defect in removal procedure that may be waived by a failure to timely file a
motion for remand. Wilson v. Gen. Motors Corp., 888 F.2d 779, 781 n.1 (11th Cir. 1989).
Mr. Littlefield contends that Defendant Rock-Tenn was served with his original state
court complaint on January 15, 2012, and thus, Rock-Tenn’s notice of removal is untimely
because it was filed outside of §1446(b)’s thirty-day window.2 Rock-Tenn argues that the
time for filing its notice of removal did not begin running until it was served with Mr.
Littlefield’s amended complaint on or about June 5, 2012, which added it as the proper party
to the action. Rock-Tenn further argues that Mr. Littlefield’s motion to remand should be
denied as untimely, because he did not file the motion until September 7, 2012, sixty-six days
after Rock-Tenn filed its notice of removal.3
As an initial matter, Mr. Littlefield’s motion to remand is due to be denied for its
Mr. Littlefield argues that the amended complaint, which was filed on June 5, 2012, was
only filed to identify the correct defendant, Rock-Tenn, contending that Rock-Tenn was formerly
known as Rock-Tenn Services. (Doc. #5, at ¶ 8.)
Mr. Littlefield’s counsel argues that he was not admitted to practice before this Court
until August 22, 2012, and that he was assured that his deadline for filing a “responsive pleading”
would not begin running until his date of admission. However, counsel never filed a motion for
extension of the motion to remand deadline with the Court, and the Court lacks any information
regarding counsel’s claim. Moreover, the Court is aware of no authority that supports counsel’s
assertion that he is entitled to an extension of the remand deadlines because of the delay in his
admission absent a motion for extension of the deadline.
untimeliness. To be timely, a motion to remand based on an alleged defect in removal
procedure must be filed within thirty days of the notice of removal. 28 U.S.C. § 1447(c) (“A
motion to remand the case on the basis of any defect other than subject matter jurisdiction
must be made within 30 days after the filing of the notice of removal under section
1446(a).”). In this case, Mr. Littlefield filed his Motion to Remand on September 7, 2012,
more than thirty days after Rock-Tenn filed its Notice of Removal on July 3, 2012. Because
Mr. Littlefield’s only basis for the motion to remand was a procedural defect, by filing the
motion to remand outside of the thirty-day period provided in § 1446(a), Mr. Littlefield
waived his right to assert procedural defects in Rock-Tenn’s removal of this matter. The
motion to remand is, therefore, due to be denied.
Furthermore, the Court finds no merit in Mr. Littlefield’s argument that Rock-Tenn’s
notice of removal was untimely. This argument is based on the incorrect assertion that RockTenn was served with the state court complaint on January 15, 2012, and thus, the time for
filing a notice of removal was long-expired by the time Rock-Tenn filed its notice of removal
in this Court. But Rock-Tenn was not served with Mr. Littlefield’s complaint until June 5,
2012, at the earliest, when Mr. Littlefield amended his complaint and added it as the correct
party to the action. In its response to the motion to remand, Rock-Tenn asserts that it is, and
has always been, a separate legal entity from the original defendant, Rock-Tenn Services.
(Def.’s Resp., at 11, Doc. #8.) In support of this position, Rock-Tenn submitted the
Declaration of Christopher Berg, Assistant General Counsel for Rock-Tenn Company and
its various subsidiaries, including Rock-Tenn Services and Rock-Tenn, in which Mr. Berg
avers that the two companies are separate. (Decl. of Christopher Berg, Doc. #8-1.) Mr.
Littlefield chose not to file a reply with supporting evidence to counter Rock-Tenn’s
contention that Rock-Tenn and Rock-Tenn Services are separate legal entities.
In holding that a named defendant’s time for filing a notice of removal does not begin
running until formally served with the complaint, the Supreme Court acknowledged the
bedrock principle that “[a]n individual or entity named as a defendant is not obliged to
engage in litigation unless notified of the action, and brought under a court’s authority, by
formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–48
(1999). “[O]ne becomes a party officially, and is required to take action in that capacity,
only upon service of a summons or other authority-asserting measure stating the time within
which the party served must appear and defend.” Id. at 350. Because Rock-Tenn did not
become a party to this action until June 5, 2012, at the earliest, the Court finds that its notice
of removal, filed on July 3, 2012, was timely.
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion to Remand
(Doc. #5) is DENIED.
DONE this 3rd day of July, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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