Ferrell v. Forrester
MEMORANDUM OPINION AND ORDER that Plf's 9 Motion to Remand is GRANTED, and this action is REMANDED to the Circuit Court of Chambers County, Alabama, pursuant to 28 USC § 1447(c); DIRECTING the Clerk to take appropriate steps to effectuate the remand. Signed by Chief Judge William Keith Watkins on 3/5/2013. (wcl, ) Modified on 3/5/2013 to reflect that certified copies of the docket sheet and the opinion and order were mailed to the Chambers County Circuit Court (wcl, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
) CASE NO. 3:12-CV-844-WKW
MEMORANDUM OPINION AND ORDER
Defendant Stephanie Forrester removed this action from the Circuit Court of
Chambers County, Alabama, pursuant to 28 U.S.C. §§ 1332(a), 1441, and 1446(b).1
Before the court is Plaintiff’s motion to remand (Doc. # 5), which Defendant opposes
(Doc. # 11). Based upon the arguments of counsel, the relevant law, and the record
as a whole, Plaintiff’s motion is due to be granted.
I. STANDARD OF REVIEW
Federal courts have a strict duty to exercise the jurisdiction conferred on them
by Congress. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). At the
same time, “[f]ederal courts are courts of limited jurisdiction.” Burns v. Windsor Ins.
Sections 1441 and 1446 were amended in 2011, and those amendments became
effective on January 6, 2012. See Federal Courts Jurisdiction & Venue Clarification Act of 2011
(“Act”), Pub.L. No. 112–63, 125 Stat. 758. Because this action was commenced prior to the
Act’s effective date, the Act does not apply to this action. See id.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Hence, in actions removed from state court
to federal court, federal courts strictly construe removal statutes, resolve all doubts
in favor of remand, and place the burden of establishing federal jurisdiction on the
defendant. Miedema v. Maytag Corp., 450 F.3d 1322, 1328–30 (11th Cir. 2006).
This action arises out of a two-vehicle collision occurring between Plaintiff and
Defendant on December 29, 2008, in Chambers County, Alabama. Plaintiff’s vehicle
was totaled, and she suffered “permanent injuries” to her ribs, right knee, left arm,
and “body as a whole.” (Compl. 2.) Her injuries have required “extensive, painful
medical treatment,” and her pain and mental anguish have been “great.” (Compl. 2.)
Plaintiff filed this action on December 7, 2010, in the Circuit Court of
Chambers County, Alabama. Seeking compensatory and punitive damages in
unspecified amounts, Plaintiff alleges state law claims for negligence and wantonness
against Defendant. The Complaint alleges that Plaintiff and Defendant are Alabama
For reasons not stated in the record, Plaintiff did not perfect service on
Defendant until August 30, 2012, approximately twenty-one months after the filing
of the Complaint. Defendant removed this action based upon diversity jurisdiction,
within thirty days of receiving service of the initial complaint. See § 1446(b).
In her Notice of Removal, Defendant asserts that there is complete diversity of
parties and the amount in controversy exceeds $75,000, exclusive of interest and
costs. Defendant avers that Plaintiff is an Alabama citizen and that Defendant is a
Florida citizen. The record reveals that Defendant was an Alabama citizen when the
motor vehicle accident occurred and when this lawsuit was filed. By the time she was
served with process, however, Defendant had graduated from a university in Alabama
and had moved to Florida where she obtained employment. (Doc. # 11, at 2.)
“Complete diversity requires that no defendant in a diversity action be a citizen
of the same state as any plaintiff.” MacGinnitie v. Hobbs Group, LLC, 420 F.3d
1234, 1239 (11th Cir. 2005) (per curiam), abrogated on other grounds by Hertz Corp.
v. Friend, 130 S. Ct. 1181, 1186 (2010); see also § 1332(a). The motion to remand
turns on whether Defendant has demonstrated complete diversity of citizenship. For
the reasons to follow, Defendant has not satisfied her burden of proof. The court
need not reach, therefore, the issue with respect to the amount in controversy.
There is well-established precedent that “[i]n order for a case to be removable
on the ground of diversity, diversity must exist at the time the state action is
commenced.” Roecker v. United States, 379 F.2d 400, 407 (5th Cir. 1967)2 (citing
Jackson v. Allen, 132 U.S. 27 (1889)); see also MacGinnitie, 420 F.3d at 1239
(holding in a removal case that “[c]itizenship for diversity purposes is determined at
the time the suit is filed”). A corollary to this general rule is that if complete diversity
did not exist when the action originally was commenced, a party cannot create it later
by changing his or her domicile. See Goff v. Michelin Tire Corp., 837 F. Supp. 1143,
1144 (M.D. Ala. 1993) (finding that removal jurisdiction based on diversity of
citizenship was not destroyed by the plaintiff’s change of citizenship after the action
had been commenced in state court); Kilpatrick v. Arrow Co., 425 F. Supp. 1378,
1380 (W.D. La. 1977) (“[A] defendant cannot render a suit removable merely by
moving to another State after plaintiff files his original complaint in the State Court.”
(citing Porter v. St. Louis-San Francisco Ry. Co., 354 F.2d 840 (5th Cir. 1966)).
There also is a long line of authority that when diversity of citizenship is the
basis of removal, complete diversity also must exist “at the time the case is removed
to federal court.” (collecting cases)); see also Stevens v. Nichols, 130 U.S. 230, 231
(1889) (“The case was not removable from the state court, unless . . . at the
commencement of the action, as well as when the removal was asked, [the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down before October 1, 1981.
defendants] were citizens of some other State than the one of which the plaintiff was,
at those respective dates, a citizen.”); Goff, 837 F. Supp. at 1144 (“In order for
defendants to be able to remove this case to federal court based on diversity, diversity
must have existed at both the time the complaint was originally filed and at the time
of removal.”). Here, it is undisputed that there was complete diversity between the
parties at the time of removal; thus, the focus is on whether complete diversity existed
at the commencement of the action in state court.
The parties’ arguments focus on Plaintiff’s and Defendant’s citizenship on two
separate dates: (1) the date the lawsuit was filed (December 7, 2010); and (2) the date
Defendant was served (August 30, 2012). The facts with respect to the parties’
citizenship on these dates are not in dispute. Plaintiff was an Alabama citizen on both
dates. Defendant was an Alabama citizen on the date of the Complaint’s filing in
state court but was a Florida citizen on the date of service.
The dispute lies in the timing for determining complete diversity. Plaintiff
contends that complete diversity is lacking because on the date of the Complaint’s
filing in state court, both parties were citizens of the same state.
Defendant argues that this is not the usual case where “the date of filing and
the date of service are . . . very close in time.” (Doc. # 11, at 2.) Rather, twenty-one
months separate the Complaint’s filing and service of process on Defendant. (Doc.
# 11, at 2.) Defendant urges that where service is delayed and there is a change in a
defendant’s citizenship after the Complaint’s filing but prior to service, the date the
Complaint was filed is not determinative for assessing complete diversity. Defendant
argues that on this record complete diversity should be determined at the time
Defendant was served with process. Because Defendant changed her citizenship from
Alabama to Florida in the interim between the Complaint’s filing and service of
process, Defendant contends that there is complete diversity between the parties to
support removal. For the reasons to follow, the court finds that Defendant has not
met her burden of demonstrating complete diversity.
Defendant’s argument alludes to a potentially relevant principle of law, but
stops short of addressing it, namely, that timely service is a prerequisite to a lawsuit’s
commencement. Generally, a lawsuit’s commencement and its filing are one and the
same. Compare Roecker, 379 F.2d at 407 (“commenced”), with MacGinnitie, 420
F.3d at 1239 (“filed”). That is not always so, however, and whether an exception lies
to the general rule requires a threshold determination of the meaning of
In other contexts sufficiently analogous, courts in this circuit have found that
state law determines when an action is commenced. See Tmesys, Inc. v. Eufaula
Drugs, Inc., 462 F.3d 1317, 1319 (11th Cir. 2006) (“[S]tate law determines when an
action is commenced for purposes of CAFA.”); Hattaway v. Engelhard Corp., 998
F. Supp. 1479, 1480 (M.D. Ga. 1998) (To determine when the case commenced for
purposes of § 1446(b)’s one-year bar on removal of diversity actions, the district
court “look[s] to state law.”); see also Easley v. Pettibone Mich. Corp., 990 F.2d 905,
908 (6th Cir. 1993) (“State law determines when an action is commenced for removal
Under Alabama law, “[a] civil action is commenced by filing a complaint with
the court.” Ala. R. Civ. P. 3(a). Rule 3(a) anticipates that generally an action
commences upon filing, even though service is not made until later, but the Supreme
Court of Alabama has carved out an exception to that general rule. An action is not
commenced under Rule 3(a) if “it was not filed with the bona fide intention of having
it immediately served.” Ward v. Saben Appliance Co., 391 So. 2d 1030, 1035 (Ala.
1980); see also Freer v. Potter, 413 So. 2d 1079, 1081 (Ala. 1982) (Rule 3(a) “calls
for an implied demand for immediate service.”). For example, in three Alabama
cases, the plaintiffs did not have the requisite bona fide intention where upon filing
of the complaints, the plaintiffs’ counsel gave instructions for withholding service,
and, therefore, the actions did not commence on the dates the complaints were filed.
See Ward, 391 So. 2d at 1035; Finkelstein v. Lovell, 449 So. 2d 1240, 1240 (Ala.
1984); Freer, 413 So. 2d at 1081.
Based upon the foregoing authority, Defendant may be attempting to argue that
the action did not commence at the Complaint’s filing in state court because Plaintiff
did not intend immediate service. On its face, this argument is appealing based upon
the twenty-one-month gap between the Complaint’s filing and service of process.
The record is barren, however, concerning Plaintiff’s intention with respect to service.
Defendant asserts that the delay was “the complete fault of the Plaintiff” (Doc. # 11,
at 1), but that argument is conclusory and sheds no light on what efforts Plaintiff
made or did not make to serve Defendant. There is no evidence similar to that in
Ward, Freer, and Finkelstein that Plaintiff’s counsel directed the state court clerk not
to serve Defendant. There is insufficient evidence that Plaintiff did not have a bona
fide intention of having the Complaint immediately served. Defendant, as the party
seeking access to a federal forum, must bear the brunt of the evidentiary deficiency.
See Miedema, 450 F.3d at 1328.
Under Alabama law, therefore, this action
commenced upon the filing of the Complaint.
To argue otherwise, Defendant cites Hendry v. Masonite Corp., 455 F.2d 955
(5th Cir. 1972). That case was decided on appeal in 1972 from a decision of the
Southern District of Mississippi. As discussed above, state law determines when an
action commences for the purposes of determining diversity jurisdiction. It may have
been that actions commenced upon service, rather than upon filing, under Mississippi
law in 1972 (the setting of the Hendry case), or it may have been that on Hendry’s
facts, the dates of filing coincided with the dates of service. Hendry does not say.
But under Alabama law today, this action commenced when Plaintiff filed her
complaint in Chambers County, and nothing in the Hendry decision compels a
The court declines to adopt Defendant’s argument that the date of service is the
date for determining her citizenship, to the extent her argument ignores the intentions
of Plaintiff regarding immediate service. To do so would provide an incentive for a
manipulative defendant sued in state court on state law claims, but desiring a federal
forum, to avoid service for the purpose of changing domiciles to create an avenue for
removal. While there is no indication of improper motives here, there is persuasive
authority that another court-made removal rule was designed to prevent similar
tactics. Cf. 14B Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal
Practice and Procedure § 3723 (4th ed. 2009) (“The purpose of requiring diversity to
exist at both times apparently is to prevent a non-diverse defendant from acquiring
a new domicile after commencement of the state court suit and then removing on the
basis of the newly created diversity of citizenship.”).
Defendant urges a rule treating service of process as the determining date for
assessing complete diversity when a defendant argues a change in his or her domicile
prior to service, but after a complaint’s filing. Defendant seeks to use the date of
service of process to her removal advantage. But it is unclear what her position
would have been if complete diversity had existed at the time of the Complaint’s
filing in state court, but had dissolved prior to service based upon Defendant’s change
of domicile. Defendant offers no policy reason that equally applies to her situation
and the reverse situation, but as indicated above, there is a policy reason that supports
rejection of her theory.
For the foregoing reasons, for purposes of determining whether complete
diversity exists, the citizenship of the parties at the time the action was commenced
in state court controls, and here Alabama law governs for ascertaining when the
action commenced. Absent evidence that Plaintiff lacked the requisite bona fide
intent to effect immediate service, as required under Alabama law, this action
commenced on the date of the Complaint’s filing in state court, not later. On that
date, both Plaintiff and Defendant were Alabama citizens; therefore, complete
diversity is lacking. These findings are within the heartland of Supreme Court
precedent, align with Alabama law’s defining when an action commences, and are
consistent with the Eleventh Circuit’s “rule of construing removal statutes strictly and
resolving doubts in favor of remand.” Miedema, 450 F.3d at 1328.
Defendant removed this action on the basis of diversity jurisdiction, but she has
not established that there was complete diversity between the parties when the action
was commenced in state court. Accordingly, it is ORDERED that Plaintiff’s motion
to remand (Doc. # 9) is GRANTED, and this action is REMANDED to the Circuit
Court of Chambers County, Alabama, pursuant to 28 U.S.C. § 1447(c). The Clerk of
the Court is DIRECTED to take appropriate steps to effectuate the remand.
DONE this 5th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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