Vasseur v. Sowell et al

Filing 37

ORDER granting 19 Motion to Remand. This case is remanded to the Circuit Court of Texas County, Missouri for further proceedings. Signed on 7/31/2018 by District Judge Roseann Ketchmark. (Stout, Courtney)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
ADAM VASSEUR,
)
)
Plaintiff,
)
v.
)
)
No. 6:18-03006-CV-RK
MATTHEW F. SOWELL, JOE L.
)
JARVISIII, TEI CONSTRUCTION
)
SERVICES, INC.,
)
Defendants.
)
ORDER
Before the Court is Plaintiff’s Motion to Remand (doc. 19). Defendant TEI Construction
Services, Inc., opposes Plaintiff’s Motion to Remand. Accordingly, for the reasons below,
Plaintiff’s Motion to Remand (doc. 19) is GRANTED, and it is ORDERED that this action is
remanded to the Circuit Court of Texas County, Missouri.
Background
On December 16, 2014, Plaintiff filed this action in the Circuit Court of Texas County,
Missouri against Defendant Jarvis and Defendant Sowell. See Adam Vasseur v. Matthew Sowell,
Joe Jarvis, TEI Construction Services, Inc., 14TE-CC00539 (“State Action”). On November 17,
2017, Plaintiff amended its petition to add Count III against TEI Constructions Services Inc., as a
new defendant. On January 9, 2018, TEI Constructions Services Inc., removed to this Court based
on diversity jurisdiction pursuant to 28 U.S.C. §§ 1441 and 1446.1
Legal Standard
A federal court must ensure jurisdiction is proper before it turns to the merits of the case.
Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir. 2006). A party may
remove an action to federal court if there is complete diversity of the parties and the amount in
controversy exceeds $75,000.00. 28 U.S.C. §§ 1332(a) and 1441(a). If the case does not fall
within the district court’s original jurisdiction, the court must remand the case to the state court
from which is was removed. 28 U.S.C. § 1447(c). A party seeking removal and opposing remand
1

The Court notes Defendant TEI Construction Services’ Notice of Removal does not address
whether Defendants Jarvis and Sowell consented to removal. While Defendant TEI later obtained
Defendant Sowell’s consent to removal, the record indicates Defendant Jarvis has not consented to removal.
Defendant Jarvis may later learn of removal and object; however, because the parties do not address this
possibility, the Court will not address it either.

carries the burden of establishing federal subject-matter jurisdiction by a preponderance of the
evidence. In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). Furthermore, any
doubts about the propriety of removal should be resolved in favor of remand. In re Bus. Men’s
Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993) (per curiam).
The notice of removal must be filed within thirty days of the defendant’s receipt of the
initial pleadings. 28 U.S.C. § 1446(b)(1). If a case is not originally removable, a defendant who
receives a paper or pleading that indicates the case is now removable may remove the case to
federal court within thirty days of receiving the paper or pleading. Caterpillar Inc. v. Lewis, 519
U.S. 61, 68-69 (1996). However, a case cannot be removed to federal court based on diversity of
citizenship “more than one year after commencement of the action.” 28 U.S.C. § 1446(b). See
Lindsay v. Dillard’s, Inc., 306 F.3d 596, 600 (8th Cir. 2002) (the “[f]ailure of a party to remove
within the one year limit precludes any further removal based on diversity”); Jackson v. C.R. Bard,
Inc., 2017 WL 2021087, at *3 (E.D. Mo. May 12, 2017) (the rationale behind the one-year
limitation is that a suit filed in state court should remain in state court if the case has been using
state resources for over a year). After a defendant has filed a notice of removal in federal court, a
plaintiff objecting to removal may file a motion to remand the case to state court within thirty days
of the filing of the notice of removal. Caterpillar Inc., 519 U.S. at 69. However, this thirty-day
limit does not apply to jurisdictional defects, and a district court can remand a case any time before
final judgment if it determines subject matter jurisdiction is lacking. Id.
Discussion
This Court must determine when an action “commences” to start the clock for 28 U.S.C.
§ 1446’s one-year limitation. While the Eighth Circuit has not addressed this exact question,
district courts in the Eighth Circuit agree that an action commences when the original complaint
is filed in state court. See Jackson, 2017 WL 2021087, at *3 (E.D. Mo. May 12, 2017); Schafer v.
Bayer Cropscience LP, 2010 WL 1038518, at * 1 (E.D. Ark. March 19, 2010) (same); Clark v.
Wyeth, 2012 WL 3027916, at *3 (E.D. Mo. July 24, 2012) (same); Boyke v. Celadon Trucking
Servs., Inc., 2009 WL 1393870, at * 3 (E.D. Mo. May 15 2009) (same). Further, an action can
only commence once, and while pleadings may be amended, amended pleadings do not commence
a new action. Arnold Crossroads v. Gander Mountain Co., 2011 WL 2983511, at *2 (E.D. Mo.
July 22, 2011); Jackson, 2017 WL 2021087, at *3 (same); Devalk v. Wyeth, 2012 WL 2885904, at
*4 (E.D. Mo. July 13, 2012) (“[b]ecause removal statutes are narrowly construed, section 1446’s
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one-year limit runs from the initial commencement of an action, rather than any later amendment
or other pleading that causes the case to become removable”). Accordingly, the Court finds this
action commenced on December 16, 2014, when the complaint was filed in state court.
Although the State Action commenced in December 2014, Defendants filed their Notice
of Removal on January 9, 2018, three years after the State Action was filed and well beyond the
one-year limitation for removal on diversity grounds. While Plaintiff waived its right to seek
remand based on procedural defects in the removal process, the one-year limitation in 28 U.S.C.
§ 1446(c) is jurisdictional and cannot be waived. Wejrowski v. Wyeth, 2012 WL 2367388, at *3
(E.D. Mo. June 21, 2012). See also Clark, 2012 WL 3027916, at *3 (E.D. Mo. July 24, 2012)
(“the one-year time limitation in . . . [28 U.S.C. § 1446] is jurisdictional, [and] it is not subject to
wavier or the 30-day time limitation set out in 28 U.S.C. § 1447(c) . . . [a]s a result, Plaintiffs could
not have waived their right to seek remand of this case to state court”); Schindler, 2010 WL
11579910, at *3 (“[t]he one-year limit is jurisdictional and absolute . . . . Defendants removed this
case after the one-year time limit ran. Removal was therefore untimely, and I [the Court] lack
jurisdiction over this action. The case must be remanded”); Advanta Tech. Ltd. v. BP Nutrition,
Inc., 2008 WL 4619700, at *4 (E.D. Mo. Oct. 16, 2008) (28 U.S.C. § 1446’s one-year limitation
is jurisdictional and cannot be waived); Bancservices Group, Inc. v. Stockgrowers State Bank,
2008 WL 922306, at *1 (E.D. Mo. Mar. 31, 2008) (same); Bancservices Group, Inc. v. American
National Bank, 2008 WL 585112, at *1 (E.D. Mo. Feb. 29, 2008) (same). Accordingly, this Court
lacks jurisdiction pursuant to 28 U.S.C. § 1446’s one-year limitation, and remand is proper. See
28 U.S.C. § 1447(c) (a district court must remand the case “[i]f at any time before final judgment
it appears that the district court lacks subject-matter jurisdiction”).2
Conclusion
Accordingly, Plaintiff’s Motion to Remand (doc. 19) is GRANTED, and it is ORDERED
that this case is remanded to the Circuit Court of Texas County, Missouri.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: July 31, 2018

The Court notes the parties present other arguments in their filings; however, because of the
Court’s rulings, the other arguments do not need to be addressed.
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