Jones v. H & S Homes, L.L.C. et al

Filing 25

MEMORANDUM OPINION AND ORDER, Granting 19 MOTION to Remand to Circuit Court of Lee County, Alabama filed by W. Frank Jones; Denying 9 MOTION to Consolidate Cases with Identical Claims in Pending Civil Action No. 2:07-CV-506-MEF filed by Horton Homes, Inc.; Any other pending motions are left for resolution by the CC of Lee County, AL. Signed by Hon. Chief Judge Mark E. Fuller on 10/15/08. (Attachments: # 1 appeals checklist)(mailed cert copy/CC Lee Co, AL)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION W . FRANK JONES, P L A IN T IF F , v. H & S HOMES, L.L.C., et al., DEFEN DANTS. ) ) ) ) ) ) ) ) )

C A S E NO. 3:08-cv-571-MEF (W O - D O NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER O n April 11, 2007, W. Frank Jones ("Jones") filed a lawsuit in the Circuit Court of L e e County, Alabama against H&S Homes, L.L.C. ("H&S"), Horton Homes, Inc. (" H o rto n " ), and Edwin Brooks ("Brooks"). Jones set forth claims under Alabama law for v a rio u s types of fraud, conversion, negligence, and wantonness. All claims arise out of his p u r c h a s e of a mobile home manufactured by Horton and sold by H&S and its servant Brooks. J o n e s sought unspecified punitive and compensatory damages. Jones and Brooks are alleged to be citizens of Alabama. H&S and Horton are alleged to be foreign entities. On July 17, 2008, Horton removed the action to this Court invoking this Court's s u b je c t matter jurisdiction pursuant to 28 U.S.C. § 1332(a). On November 14, 2005, Crews f ile d Plaintiff's Motion to Remand (Doc. # 4). The court has carefully considered the a p p lic a b le law and the arguments in support of and in opposition to the motion to remand and f in d s that it is due to be GRANTED because Markel's removal was not timely made.

D IS C U S S IO N F e d e ra l courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. o f Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); W y m b s v. Republican State Executive Comm. of Fla., 719 F.2d 1072, 1076 (11th Cir. 1983), c e r t. denied, 465 U.S. 1103 (1984). As such, federal courts only have the power to hear c a se s that they have been authorized to hear by the Constitution or the Congress of the United S ta te s . Kokkonen, 511 U.S. at 377. Among the cases over which a federal district court may exercise subject matter j u r i s d i c ti o n are civil actions in which only state law claims are alleged if the civil action a ris e s under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The diversity s ta tu te confers jurisdiction on the federal courts in civil actions "between citizens of different s ta te s ," in which the jurisdictional amount, currently in excess of $75,000, is met. Id. When a case is originally filed in state court, a party may remove it if the case o rig in a lly could have been brought in federal court. See 28 U.S.C. § 1441(a). However, the n o n -m o v in g party may move for remand, which will be granted if "it appears that the district c o u rt lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because removal

ju ris d ic tio n raises significant federalism concerns, "removal statutes are construed narrowly; w h e re plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of re m a n d ." Burns, 31 F.3d at 1095. When a case is removed from state court, the burden is on th e party who removed the action to prove federal-court jurisdiction. Id.

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I n seeking remand, Jones contends both that Horton did not timely remove this case to federal court and that Markel has not met its burden of establishing that the amount in c o n tro v e rs y exceeds the sum required by 28 U.S.C. § 1332(a). This opinion focuses on the is s u e s relating to the timeliness of the removal. Horton, the party bearing the burden of p ro v in g federal jurisdiction, also has the task of proving to the court that the removal was tim e ly. See, e.g., Clingan v. Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1302 (M.D. Ala. 2 0 0 3 ). Because the Court concludes that the removal was not timely filed, it need not, and w ill not, address the amount in controversy. Federal law limits the period in which a defendant may exercise his removal right f ro m state to federal court. The notice of removal of a civil action or proceeding s h a ll be filed within thirty days after the receipt by the d e f en d a n t, through service or otherwise, of a copy of the initial p le a d in g setting forth the claim for relief upon which such a c tio n or proceeding is based.... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt b y the defendant, through service or otherwise, of a copy of an a m e n d e d pleading, motion, order or other paper from which it m a y first be ascertained that the case is one which is or has b e c o m e removable, except that a case may not be removed on th e basis of jurisdiction conferred by section 1332 of this title m o r e than 1 year after commencement of the action. 2 8 U.S.C. § 1446(b) (emphasis added). Given that removal statutes must be construed n a rro w ly, § 1446's time requirement is mandatory and must be strictly applied; "[t]imely o b je c tio n to a late petition for removal will therefore result in remand." Webster v. Dow 3

U n i t e d Techs. Composite Prods., Inc., 925 F. Supp. 727, 729 (M.D. Ala. 1996) (citations o m itte d ). Accord, Clingan, 244 F. Supp. 2d at 1302-03. Horton contends that this Court should apply an equitable estoppel exception to the o n e year time limit. Some courts in other jurisdictions have held that the removal statute's o n e year limit on removal is subject to equitable exception. See, e.g., Tedford v. WarnerL a m b e rt Co., 327 F.3d 423 (5th Cir. 2003). The Eleventh Circuit Court of Appeals does not a p p e a r to have spoken on this point in a holding, but it has offered dicta which would in d ic a te that, unlike the Fifth Circuit, it would not be inclined to recognize such an exception. S e e Burns, 31 F.3d 1092, 1097 n.12 (11th Cir. 1994) ("we are not convinced that congress w o u ld find the result Windsor fears (that is, an amendment for greater damages after the one ye a r deadline for removal) to be bad. The Commentary to the 1988 Revisions of 28 U.S.C. § 1446(b) shows that congress knew when it passed the one year bar on removal that some p la in tif f s would attempt to defeat diversity by fraudulently (and temporarily) joining a nond iv e rse party. In that case, as long as there is some possibility that a non-diverse joined party c o u ld be liable in the action, there is no federal jurisdiction. But, under section 1446(b), if, a f te r one year, the plaintiff dismisses the non-diverse defendant, the defendant cannot re m o v e . So, a plaintiff could defeat jurisdiction by joining a non-diverse party and

d is m is s in g him after the deadline. Congress has recognized and accepted that, in some circu m stan ce s, plaintiff can and will intentionally avoid federal jurisdiction."). Moreover, th is Court has previously held that the one-year time limit is absolute and not subject to

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e x c e p tio n . See, e.g., Russaw v. Voyager Life Ins. Co., 921 F. Supp. 723, 724-25 (M.D. Ala. 1 9 9 6 ) (Thompson, J.). In light of the dicta in Burns and the prior holdings of this Court d e c lin in g to recognize an equitable exception to the time limit for removal, the Court finds th a t the Notice of Removal in this case was untimely because it was not filed within one year o f the commencement of the action, and this case is due to be remanded to the Circuit Court o f Lee County. CONCLUSION F o r the reasons discussed in this Memorandum Opinion and Order, it is hereby O R D E R E D as follows: (1 ) (2 ) P la in tif f 's Motion to Remand (Doc. # 19) is GRANTED. This case is REMANDED to the Circuit Court of Lee County, Alabama. The C le rk is DIRECTED to take appropriate steps to effect the remand. (3 ) Horton Homes, Inc.'s Motion to Transfer and for Order Consolidating Alter E g o Claims With Trial of Identical Claims in Pending Civil Action No. 2 :0 7 c v 5 0 6 -M E F (Doc. # 9) is DENIED. (4 ) Any other pending motions are left for resolution by the Circuit Court of Lee C o u n ty, Alabama. D O N E this the 15th day of October, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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