D'Alessandro v. Cumberland Farms, Inc.

Filing 18

RULING granting 15 Motion to Remand to State Court. Signed by Judge Janet C. Hall on 6/19/2012. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SARAH D’ALESSANDRO,
Plaintiff,
v.
CUMBERLAND FARMS, INC.,
Defendant.

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CIVIL CASE NO.
3:12-cv-600 (JCH)

JUNE 19, 2012

RULING RE: MOTION TO REMAND TO STATE COURT (DOC. NO. 15)
I.

INTRODUCTION
This action arises from plaintiff Sarah D’Alessandro’s slip and fall in a

Cumberland Farms store in Waterbury, Connecticut, in August 2009. Currently pending
before the court is D’Alessandro’s Motion to Remand to State Court. Doc. No. 15. For
the following reasons, the Motion is granted and the case is remanded.
II.

BACKGROUND
On February 25, 2012, D’Alessandro filed suit in Connecticut Superior Court,

asserting negligence claims against Cumberland Farms, Inc. (“Cumberland”), and Dilip
Katkar, the manager on duty at the time of her fall. Notice of Removal (Doc. No. 7),
Ex. A (“Complaint”). Diversity of citizenship did not exist at the time of filing, because
D’Alessandro and Katkar are both citizens of Connecticut. Notice of Removal ¶¶ 1,3.
On March 5, 2012, the state court granted Katkar’s Motion for Summary
Judgment. Id. ¶ 9. D’Alessandro filed a Notice of Intent to Appeal, which would have
allowed her to defer appeal of the Katkar ruling until the state court entered final
judgment in the case. Id. ¶ 10; Conn. R. App. P. § 61-5(a)(2). Katkar, however,
objected to deferral of the appeal. Notice of Removal ¶ 11. Under the Connecticut
Rules of Appellate Procedure, D’Alessandro was required to file her appeal within

twenty days of Katkar’s objection. Conn. R. App. P. § 61-5. D’Alessandro failed to do
so. Notice of Removal ¶ 12. Cumberland subsequently removed the case to this court
on April 23, 2012.1
III.

DISCUSSION
At the time D’Alessandro commenced this action in state court, section 1446 of

Title 28 of the United States Code provided that “a case may not be removed upon the
basis of jurisdiction conferred by section 1332 of this title more than 1 year after
commencement of the action.” 28 U.S.C.A § 1446(b) (West 2011). On December 7,
2011, section 1446 was amended to provide that removal after one year is permissible if
“the district court finds that the plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.” See Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 758, 760 (2011)
(codified at 28 U.S.C. § 1446(c)(1)). The “bad faith” amendment does not apply to this
case, because D’Alessandro commenced the action prior to the amendment’s effective
date of January 6, 2012. See id. § 205 (specifying that the amendment “shall take
effect upon the expiration of the 30-day period beginning on the date of the enactment
of this Act” and that it shall apply to “any action that is removed from a State court to a
United State district court and that had been commenced, within the meaning of State
law, on or after [the Act’s] effective date”).

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The court notes that a defendant typically may not remove a case on the basis of diversity
jurisdiction where diversity did not exist at the time of filing and was created by a state court’s entry of
summary judgment in favor of the non-diverse party (i.e., an involuntary dismissal). See Quinn v. Aetna
Life and Cas. Co., 616 F.2d 38, 40 n.2 (2d Cir. 1980). The “involuntary dismissal” rule does not apply
here, however, because D’Alessandro failed to file a timely appeal of the state court’s ruling in favor of
Katkar. See id. (holding that a plaintiff’s failure to appeal a state court ruling is the “functional equivalent”
of a voluntary dismissal and does not bar removal).

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However, even prior to the enactment of the statutory “bad faith” exception to the
one-year removal deadline, some courts recognized a roughly equivalent equitable
exception. See, e.g., Tedford v. Warner-Lambert Co., 327 F.3d 423, 429 (5th Cir. 2003)
(holding that an equitable exception is available “[w]here a plaintiff has attempted to
manipulate the statutory rules for determining federal removal jurisdiction, thereby
preventing the defendant from exercising its rights [within the statutory period]”); see
also In re Rezulin Prods. Liab. Litig., No. 00 Civ. 2843, 02 Civ. 6827, 2003 WL
21355201, at *2 (S.D.N.Y. June 4, 2003) (“an equitable exception to the one-year time
limit imposed by Section 1446(b) is warranted where . . . the circumstances suggest that
the plaintiff acted tactically to avoid removal and the interests of justice favor removal”).
The Second Circuit has never addressed the question of whether the one-year deadline
may be equitably extended.
Cumberland does not dispute that it removed this action more than one year after
commencement. Notice of Removal ¶ 14. Cumberland contends, however, that its
failure to meet the statutory deadline was the result of D’Alessandro’s strategic efforts to
prevent removal. Cumberland first argues that D’Alessandro had no factual basis for
asserting a negligence claim against Katkar—who did not own, possess, or control the
store in which D’Alessandro fell—and that she joined him “solely for the purposes of
destroying diversity and preventing [removal].” Def.’s Mem. Opp’n (Doc. No. 13) at 8.
Cumberland further argues that D’Alessandro sought to delay removal by requesting
two sixty-day extensions of time to respond to Katkar’s Motion for Summary Judgment
in state court and by attempting to defer appeal of the state court’s ruling until the entry
of final judgment in the case. Notice of Removal ¶¶ 14-15.

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However, if the fraudulent nature of D’Alessandro’s claim against Katkar was
apparent to Cumberland from the face of the Complaint, Cumberland should have
removed the case immediately and asked the federal court to dismiss Katkar as a
fraudulently joined defendant. See Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461
(2d Cir. 1998) (holding that a defendant may remove on a theory of fraudulent joinder if
it can “demonstrate, by clear and convincing evidence . . . that there is no possibility,
based on the pleadings, that a plaintiff can state a cause of action against the nondiverse defendant in state court”). There was no need to wait for the state court to grant
Katkar’s Motion for Summary Judgment before removing. Accordingly, Cumberland
cannot show that D’Alessandro’s joinder of Katkar or requests for extensions of time in
state court prevented timely removal of the case. Compare Hill v. Delta Intern.
Machinery Corp., 386 F. Supp. 2d 427, 431 (S.D.N.Y. 2005) (declining to apply
equitable exception where defendants could have relied on the fraudulent joinder
doctrine to remove in a timely manner), with In re Rezulin, 2003 WL 21355201, at *1
(applying equitable exception where the complaint did not suggest that the non-diverse
defendant had been fraudulently joined).
The court is also doubtful that D’Alessandro’s two requests for extensions of time
in state court—requests that Cumberland did not oppose—represent the sort of clearly
strategic behavior that the equitable exception was designed to address. Cf. Tedford,
327 F.3d at 427 (applying equitable exception where the plaintiff joined a non-diverse
defendant only hours after being informed of the defendant’s intention to remove the
case and then voluntarily dismissed that non-diverse defendant as soon as the one-year
period for removal expired). Thus, even assuming that an equitable extension is

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generally permissible in the Second Circuit, the court finds that such an extension is not
justified in the present case.
A. CONCLUSION
Because this action was removed more than one year after its commencement in
state court, the Motion to Remand (Doc. No. 15) is granted. The Clerk is directed to
remand this case to Connecticut Superior Court, Judicial District of Waterbury.
SO ORDERED.
Dated at Bridgeport, Connecticut, this 19th day of June, 2012.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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