Barajas et al v. Continental Tire the Americas, LLC

Filing 38

Opinion and Order. The Court GRANTS Plaintiffs' Motion (# 29 ) for Remand, DENIES as moot all other pending Motions, and REMANDS this matter to Multnomah County Circuit Court. Signed on 5/18/17 by Judge Anna J. Brown. See 20 page order for details. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HERIBERTO BARAJAS; TANIA
DENISE OROZCO, as Conservator
for ERIC BARAJAS, a Minor
Child; RIGOBERTO OROZCOGONZALES, JR., Personal
Representative for the ESTATE
of IVON C. BARAJAS-OROZCO;
and ALICE A. WHEELER
FIDUCIARY SUPPORT SERVICES,
INC., Personal Representative
of the ESTATE of BABY
BARAJAS-OROZCO (FETUS),
Plaintiffs,
v.
CONTINENTAL TIRE THE
AMERICAS, LLC; FRANCISCO
LOPEZ dba NERI AUTO SALES;
and PETER SKLYARUK dba
ALIGNMENT WORLD,
Defendants.

THOMAS D. D'AMORE
DOUGLAS P. OH-KEITH
D'Amore Law Group, PC
4230 Galewood Street
Suite 200
Lake Oswego, OR 97035
[phone]
Attorneys for Plaintiffs
1 - OPINION AND ORDER

3:17-CV-00212-BR
OPINION AND ORDER

MARGARET A. HOFFMANN
JEFFREY D. HERN
Schwabe, Williamson & Wyatt
1211 S.W. Fifth Ave
Suite 1600
Portland, OR 97204
[phone]
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Plaintiffs’ Motion
(#29) for Remand.

For the reasons that follow, the Court GRANTS

Plaintiffs’ Motion, DENIES as moot all other pending Motions, and
REMANDS this matter to Multnomah County Circuit Court.

BACKGROUND
The following facts are taken from Defendants’ Notice of
Removal, documents attached to Defendants’ Notice of Removal, and
the parties’ filings related to Plaintiffs’ Motion to Remand.
On June 10, 2013, Neri Auto Sales sold a 2003 Ford
Expedition (the SUV) to Maria Isabel Barajas Ballines.

At some

point after June 10, 2013, and before June 22, 2013, Alignment
World performed maintenance on the SUV.

On June 22, 2013, the

right rear-passenger side of the SUV had a tire designed,
manufactured, assembled, and sold by Continental Tire of the
Americas (CTA).
On June 22, 2013, Ballines was driving the SUV westbound on
Interstate 80 in Cedar County, Iowa, with several passengers,
2 - OPINION AND ORDER

including Plaintiffs Heriberto Barajas, Eric Barajas, Ivon C.
Barajas-Orozco, and Baby Barajas-Orozco.1

As Ballines was

driving, the right rear-passenger-side tire had a “catastrophic
separation of the tread from the tire carcass,” which resulted in
the “loss of vehicle control” and a rollover crash in which Ivon
Barajas-Orozco and Baby Barajas-Orozco were killed and Heriberto
Barajas and Eric Barajas were injured.
On June 1, 2015, Heriberto Barajas, Eric Barajas, and the
Estate of Ivon C. Barajas-Orozco, all of whom are Oregon
residents, commenced an action in Multnomah Circuit Court against
CTA, an Ohio resident; Francisco Lopez dba Neri Auto Sales, an
Oregon resident; and Peter Sklyaruk dba Alignment World, an
Oregon resident (Multnomah County Case No. 15-cv-14029).
Plaintiffs asserted claims for (1) products liability and
negligence against Neri Auto Sales for failing “to warn,
instruct, or train” [users] about the “unreasonably dangerous”
tire; (2) negligence against Alignment World for failing to
perform maintenance work in a workmanlike manner, to inspect the
incident tire, and to warn users of the tire about its potential
for failure; and (3) products liability and negligence against
CTA for design defect, manufacturing defect, and failing to warn
users about its unreasonably dangerous tire.

1

Baby Barajas-Orozco was a male “fetus of approximately 34weeks gestation residing in the womb of his mother, Ivon C.
Barajas-Orozco.” Decl. of Thomas D’Amore, Ex. H at ¶ 3.
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At some point Plaintiffs sought a stipulation to add a claim
on behalf of Baby Barajas-Orozco, but CTA declined to stipulate.
On June 6, 2016, the Estate of Baby Barajas-Orozco filed a
complaint in Multnomah County Circuit Court against CTA,
Francisco Lopez dba Neri Auto Sales, and Peter Sklyaruk dba
Alignment World (Multnomah County Case No. 16-cv-18162).
Plaintiffs asserted claims for (1) products liability and
negligence against Neri Auto Sales for failing to warn, to
instruct, or to train users about the “unreasonably dangerous”
tire; (2) negligence against Alignment World for failing to
perform maintenance work in a workmanlike manner, to inspect the
incident tire, and to warn users of the tire about its potential
for failure; and (3) products liability and negligence against
CTA for design defect, manufacturing defect, and failing to warn
about its unreasonably dangerous tire.
On August 8, 2016, the Multnomah County Circuit Court
consolidated the actions.
On November 3, 2016, Sklyaruk dba Alignment World filed a
Motion for Summary Judgment on the ground that there was not any
evidence that Alignment World performed maintenance or did any
other work on the SUV at issue.
On December 5, 2016, CTA filed a response to Sklyaruk’s
Motion in which it asserted there was a genuine dispute of
material fact as to whether Alignment World performed maintenance

4 - OPINION AND ORDER

on the SUV.
On December 19, 2016, Plaintiffs filed Notices of Dismissal
with Prejudice pursuant to Oregon Rule of Civil Procedure 54A(1)
as to Lopez dba Neri Auto Sales and Sklyaruk dba Alignment World.
Notwithstanding Plaintiffs’ December 19, 2016, Notice of
Dismissal with Prejudice of Sklyaruk, Multnomah County Circuit
Court Judge Judith Matarazzo granted Sklyaruk’s Motion for
Summary Judgment and dismissed Plaintiffs’ claims against
Sklyaruk dba Alignment World with prejudice on December 23, 2016.
Judge Matarazzo did not note or address Plaintiffs’ December 19,
2016, Notice of Dismissal in her Order.
On January 4, 2017, the Circuit Court entered a Judgment of
Dismissal with prejudice as to Sklyaruk dba Alignment World.
On January 5, 2017,Plaintiffs filed a Second Amended
Complaint in which they combined their claims against all
Defendants.2
On February 2, 2017, Judge Matarazzo signed a Judgment as to
Lopez dba Neri Auto Sales based on Plaintiffs’ Notice of
Dismissal with Prejudice of Lopez and dismissed Plaintiffs’
claims against Lopez with prejudice.

2

Notwithstanding either the Notices of Dismissal with
Prejudice or the fact that Judge Matarazzo granted Sklyaruk’s
Motion for Summary Judgment and entered a Judgment dismissing
with prejudice Plaintiffs’ claims against Sklyaruk dba Alignment
World, Plaintiffs continued to assert the same claims against
Lopez dba Neri Auto and Sklyaruk dba Alignment World in their
Second Amended Complaint.
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On February 6, 2017, the Multnomah County Circuit Court
entered the Judgment dismissing with prejudice Plaintiff’s claims
against Lopez dba Neri Auto Sales.
On February 8, 2017, CTA removed the matter to this Court on
the basis of diversity jurisdiction.

CTA asserts in its Notice

of Removal that it did not obtain the consent for removal of Neri
Auto Sales or Alignment World “because they have been dismissed
from the underlying actions and also were fraudulently joined
parties whose only purpose was to defeat removal.”
Removal at 4.

Notice of

CTA asserts removal of the “Main Barajas Case”

(15-cv-14029) is timely because “it is being removed within 30
days after it was first ascertained (on February 2, 2017) that
the case has become removable and it may be removed more than one
year after commencement of the action under the present
circumstances.”

Id. at 5.

CTA asserts removal of the “Baby

Barajas Case” (16-cv-18162) is timely because “it is being
removed within 30 days after it was first ascertained (on
February 2, 2017) that the case has become removable and within
one year after commencement of the action (on June 6, 2016).”
Id.
On March 9, 2017, Plaintiffs filed a Motion to Remand this
matter to Multnomah County Circuit Court.
Motion under advisement on April 6, 2017.

6 - OPINION AND ORDER

The Court took the

STANDARDS
28 U.S.C. § 1446(a) provides in pertinent part:

“A

defendant or defendants desiring to remove any civil action
. . . from a State court shall file in the district court of the
United States for the district and division within which such
action is pending a notice of removal."
A motion to remand is the proper procedure for challenging
removal.

Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th

Cir. 2007).

“Removal and subject matter jurisdiction statutes

are strictly construed, and a defendant seeking removal has the
burden to establish that removal is proper and any doubt is
resolved against removability.”

Hawaii ex rel. Louie v. HSBC

Bank Nevada, N.A., 761 F.3d 1027, 1034 (9th Cir. 2014)(quotation
omitted).
The removal statute, 28 U.S.C. § 1441(a), is strictly
construed against removal jurisdiction, and federal jurisdiction
must be rejected “if there is any doubt as to the right of
removal.”

Geographic Expeditions, Inc. v. Est. of Lhotka ex rel.

Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010)(citation omitted).
“This gives rise to a strong presumption against removal
jurisdiction[, which] means that the defendant always has the
burden of establishing that removal is proper,” and the court
“strictly construe[s] the removal statute against removal
jurisdiction.”

Id.

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DISCUSSION
In their Motion for Remand Plaintiffs assert this matter
should be remanded to state court because CTA’s removal was
untimely under both 28 U.S.C. § 1446(b)(1) and § 1446(b)(3).
I.

Removal Procedure
As noted, 28 U.S.C. § 1446(b)(1) provides “[t]he notice of

removal of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant . . . of a copy of the
initial pleading setting forth the claim for relief upon which
such action or proceeding is based.”
When the initial pleading does not provide a basis for
removal, § 1446(b)(3) provides “a notice of removal may be filed
within 30 days after receipt by the defendant . . . of a copy of
an amended pleading, motion, order or other paper from which it
may first be ascertained that the case is one which is or has
become removable.”
In Anderson v. Serenity Gathering, LLC, the court pointed
out that § 1446
“provides two thirty-day windows during which a
case may be removed — during the first thirty days
after the defendant receives the initial pleading
or during the first thirty days after the
defendant receives a paper ‘from which it may
first be ascertained that the case is one which is
or has become removable if the case stated by the
initial pleading is not removable.”
No.: 3:16-cv-02802-GPC-KSC, 2017 WL 192268, at *2 (S.D. Cal. Jan.
18, 2017)(quoting Harris v. Bankers Life & Cas. Co., 425 F.3d
8 - OPINION AND ORDER

689, 692 (9th Cir. 2005)).

The removal statute also provides,

however, that “a case may not be removed under

[§ 1446](b)(3) on

the basis of [diversity] jurisdiction . . . more than 1 year
after commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.”

28 U.S.C. § 1446(c)(1).

Thus, even if an action is timely removed pursuant to
§ 1446(b)(1) or (b)(3), it may, nevertheless, be remanded if it
is removed more than one year after the commencement of the
action unless the court finds the plaintiff acted in bad faith to
prevent a defendant from removing the action.
II.

Fraudulent Joinder and Removal under § 1446(b)(1)
As noted, CTA asserted in its Notice of Removal that it did

not join Neri Auto or Alignment World in its Notice because they
had been dismissed from the state-court action and “also were
fraudulently joined parties whose only purpose was to defeat
removal.”2

Notice of Removal at 4.

CTA removed this matter on the basis of diversity
jurisdiction.

“Diversity jurisdiction requires complete

diversity between the parties — each defendant must be a citizen

2

“‘[F]raudulent joinder removals are governed by the 30–day
time limit in the first paragraph [§ 1446(b)(1)] because cases
involving fraudulent joinder do not become removable, but rather,
are initially removable.” Rollins v. Fresenius USA, Inc., No.
CV 13–09394 JGB (AGRx), 2014 WL 462822, at *4 (C.D. Cal. Feb. 4,
2014)(quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313–16 (9th
Cir. 1998)).
9 - OPINION AND ORDER

of a different state from each plaintiff.”

In re Digimarc Corp.

Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008)(citation
omitted).

An exception to the requirement of the complete-

diversity requirement for federal jurisdiction exists when a
defendant has been fraudulently joined to defeat diversity.
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th
Cir.2001).

When the court deems a joinder to be fraudulent, the

defendant's presence is ignored for the purposes of determining
diversity.

Id.

When “the plaintiff fails to state a cause of action against
a resident defendant, and the failure is obvious according to the
settled rules of the state, the joinder of the resident defendant
is deemed fraudulent.”

Hamilton Materials, Inc. v. Dow Chem.

Corp., 494 F.3d 1203, 1206 (9th Cir.2007).

See also Nasrawi v.

Buck Consultants, LLC, 776 F. Supp. 2d 1166, 1169-70 (E.D. Cal.
2011)(“[A] non-diverse defendant is deemed fraudulently joined
if, after all disputed questions of fact and all ambiguities in
the controlling state law are resolved in the plaintiff's favor,
the plaintiff could not possibly recover against the party whose
joinder is questioned.”).

“The question is whether plaintiff has

a colorable claim against the alleged sham defendants.”

Madayag

v. McLane/Suneast, Inc., No. 1:16-CV-1082 AWI SAB, 2017 WL 30014,
at *6 n.3 (E.D. Cal. Jan. 3, 2017).
Here Plaintiffs asserted claims in their initial and

10 - OPINION AND ORDER

amended complaints in state court against Neri Auto Sales for
products liability and negligence based on Neri Auto Sales’s
alleged failure to warn users about the “unreasonably dangerous”
tire and a negligence claim against Alignment World for failing
to perform maintenance work in a workmanlike manner, failing to
inspect the incident tire, and failing to warn users of the tire
about its potential for failure.

Plaintiffs assert all of their

claims against Neri Auto Sales and Alignment World are
“colorable,” and, therefore, CTA has not established joinder of
Neri Auto Sales and Alignment World was fraudulent.
The record does not reflect there is any dispute that Neri
Auto Sales sold Plaintiffs the SUV that Ballines was driving when
the tire failed, and CTA does not present any evidence in its
Response to Plaintiffs’ Motion to Remand that Plaintiffs’ claims
against Neri Auto Sales were not colorable claims.

CTA does not

point to any evidence, much less clear and convincing evidence,
that if the court resolved “all disputed questions of fact and
all ambiguities in the controlling state law . . . in
[Plaintiffs’] favor, [Plaintiffs] could not possibly recover
against” Neri Auto Sales.

The Court, therefore, concludes CTA

has not established Plaintiffs fraudulently joined Neri Auto
Sales.
With respect to Alignment World, Plaintiffs point out that
CTA stated in its response to Alignment World’s motion for

11 - OPINION AND ORDER

summary judgment filed in state court:
Indeed, plaintiff Heriberto Barajas and . . .
Maria Barajas-Ballines . . . testified at their
depositions that Alignment World performed
maintenance on the subject vehicle on the
afternoon prior to departing on the cross-country
trip at issue. Such maintenance work, as alleged,
could have caused or contributed to the accident
and plaintiffs’ damages. . . . Alignment World
should not prevail on summary judgment and,
instead, should remain a party who may be held
liable or allocated fault by the trier of fact.
Notice of Removal, Ex. 88 at 2.

Thus, in the proceedings before

the state court CTA asserted Plaintiffs had a viable claim
against Alignment World, and the state court, therefore, should
not grant summary judgment in Alignment World’s favor.

According

to Plaintiffs, therefore, CTA is precluded from asserting at this
point that Plaintiffs’ claim against Alignment World was not a
colorable claim.

The Court agrees.

The Court, therefore,

concludes CTA has not established Plaintiffs' fraudulently joined
Alignment World.
Accordingly, the Court concludes CTA has not established
Plaintiffs fraudulently joined the nondiverse Defendants, that
this matter was “initially removable,” or that CTA’s removal of
this action is governed by § 1446(b)(1).
III. Removal under § 1446(b)(3)
As noted, 28 U.S.C. § 1446(b)(3) provides:
Except as provided in subsection [1446(c)], if the
case stated by the initial pleading is not
removable, a notice of removal may be filed within
30 days after receipt by the defendant, through
12 - OPINION AND ORDER

service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which
it may first be ascertained that the case is one
which is or has become removable.
Plaintiffs assert in their Motion for Remand that “it
[could] be first ascertained [by CTA] that the case [was] or
[had] become removable on December 19, 2016, when Plaintiffs
filed Notices of Dismissal with Prejudice of Neri Auto Sales and
Alignment World (the non-diverse Defendants).”

Specifically,

Plaintiffs assert their Notices of Dismissal were “other paper”
from which CTA could ascertain that the matter had become
removable on December 19, 2016.

CTA, however, did not remove the

matter to this Court until February 8, 2017, which was 51 days
after December 19, 2016.

Thus, according to Plaintiffs, CTA’s

removal of this matter was untimely.
CTA asserted in its Notice of Removal that it removed the
matter within 30 days of February 2, 2017, the date on which it
first ascertained that the matter had become removable.
Specifically, CTA asserted even though Plaintiffs filed the
Notices of Dismissal with Prejudice of Neri Auto Sales and
Alignment World on December 19, 2016, “Plaintiffs’ counsel first
denied [on February 2, 2017,] that these two dismissals were a
result of an settlement between Plaintiffs and Neri Auto Sales or
Alignment World.”

Notice of Removal at 3.

Counsel for CTA

states in his Declaration in Support of CTA’s Notice of Removal

13 - OPINION AND ORDER

that on January 26, 2017,3 Plaintiffs’ counsel “expressed an
intent [in a voicemail] to . . . amend the state-court complaint
by . . . deleting allegations against Defendants Francisco Lopez
dba Neri Auto Sales and Peter Sklyaruk dba Alignment World.”
Decl. of Jeffrey Hern at ¶ 2.

Hern testifies Plaintiffs’ counsel

“made similar comments about the intent to amend the complaint
and also denied that Plaintiffs’ . . . dismissals of . . . Neri
Auto Sales and Alignment World were a result of any settlement.”
Hern Decl. at ¶ 3.

Thus, according to CTA, February 2, 2017, was

the earliest date it was able to ascertain that the matter was
removable.

CTA, however, does not cite any authority for its

assertion that the fact a notice of dismissal with prejudice
filed earlier was not the result of a settlement extends the date
for filing a notice of removal.
In its Response to Plaintiffs’ Motion to Remand, however,
CTA now asserts the date on which it first ascertained this case
was or had become removable was February 6, 2017, the date on
which the state court entered the Judgment of Dismissal as to
Lopez dba Neri Auto Sales based on Plaintiffs’ Notice of
Dismissal with Prejudice of Lopez.
its removal was timely.

According to CTA, therefore,

In its Response CTA relies on the

“voluntary-involuntary rule” to support its assertion that it

3

Hern states in his Declaration that this conversation took
place on January 26, 2016, but the parties agree this is a
clerical error and the conversation occurred on January 26, 2017.
14 - OPINION AND ORDER

could not remove this matter until the state court entered the
Judgment of Dismissal of Lopez dba Neri Auto Sales.
The Ninth Circuit has long held “only a voluntary act of the
plaintiff [can] bring about removal to federal court.”
Gen. Motors Corp., 588 F.2d 655, 658 (9th Cir. 1978).

Self v.
This rule

is known as the “voluntary-involuntary” rule and requires an
action to “remain in state court unless a 'voluntary' act of the
plaintiff brings about a change that renders the case removable.”
Id. at 657 (citing Powers v. Chesapeake & O. Ry., 169 U.S. 92
(1898)).

See also People of State of Cal. By & Through Lungren

v. Keating, 986 F.2d 346, 348 (9th Cir. 1993)(“Since a voluntary
act by the plaintiff has not rendered the case removable, it must
remain in state court.”).

A nonremovable case cannot be

converted into a removable one “by an order of the court upon any
issue tried upon the merits.”

Id.

Voluntary acts by a plaintiff that trigger the second 30-day
removal period set out in § 1446(b)(3) include voluntarily
dismissing a defendant.

The Ninth Circuit has made clear that

the voluntary amendment of a pleading, discovery documents,
briefing, deposition testimony, and similar other items qualify
as “other paper” sufficient for a defendant to ascertain that an
action has become removable under § 1446(b)(3).

See, e.g., Eyak

Native Village v. Exxon Corp., 25 F.3d 773, 779 (9th Cir. 1994);
Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1255 (9th

15 - OPINION AND ORDER

Cir. 1989).

In Fehlman v. McCaffrey, No. 10-CV-122-ST, 2010 WL

1959534 (D. Or. Apr. 14, 2010), the court addressed the meaning
of “other paper” in the context of § 1446(b)(3).

In Fehlman the

plaintiffs were involved in an automobile accident.

The

plaintiffs brought an action in Multnomah County Circuit Court
against three diverse defendants and one nondiverse defendant.
The sole nondiverse defendant and one diverse defendant filed a
motion for summary judgment.

The Circuit Court Judge Henry

Breithaupt heard the motion on January 21, 2010.

On January 26,

2010, Judge Breithaupt issued a letter opinion granting the
motion for summary judgment and directing defendants to “prepare
an appropriate form of order.”

Id., at *2.

On February 4, 2010,

the remaining defendants removed the matter to federal court on
the ground of diversity as a result of Judge Breithaupt’s letter
opinion.

The plaintiffs moved to remand on the ground that Judge

Breithaupt’s letter opinion was not an order sufficient to
actually dismiss the nondiverse defendant from the action, and,
therefore, there was not complete diversity at the time of
removal.

The district court noted “[u]nder Oregon law, a

memorandum or letter opinion does not constitute an ‘order.’”
Id., at *4 (citing Ernst v. Logan Oldsmobile Co., 208 Or. 449,
451 (1956)).

Nevertheless, the court concluded “[e]ven though

the letter opinion is not an order, it falls within the category
of an ‘other paper from which it may first be ascertained that

16 - OPINION AND ORDER

the action is removable’ under 28 U.S.C. § 1446(b).”

Id.

The

court noted:
Courts have construed the term “other paper”
expansively to include a wide array of documents
far short of a court order. See, e.g., Eyak
Native Village v. Exxon Corp., 25 F.3d 773, 778-79
(9th Cir. 1994)(plaintiff's reply brief); Akin v.
Ashland Chemical Co., 156 F.3d 1030, 1036 (10th
Cir. 1998)(plaintiff's answers to interrogatories); Lien v. H.E.R. C. Products, Inc., 8
F. Supp. 2d 531 (E.D. Va. 1998)(settlement offer);
14C Federal Practice and Procedure (4th Ed. 2009)
§ 3731, pp. 539-47 (noting that “depositions,
answers to interrogatories, and requests for
admissions, amendments to ad damnum clauses of the
pleadings, and correspondence between the parties
and their attorneys or between the attorneys are
usually accepted as ‘other paper’ sources that
initiate a new thirty day period of removability,”
and collecting cases).
In fact, several courts have allowed removal prior
to entry by the state court of a final dismissal
order of a non-diverse defendant. Chohlis v.
Cessna Aircraft Co., 760 F.2d 901, 903 n.2 (8th
Cir. 1985)(finding that a settlement between
plaintiff and non-diverse party was sufficiently
final to support removal, although the nondiverse
party had not been adequately severed from the
state court suit at the time of removal); Ratcliff
v. Fibreboard Corp., 819 F. Supp. 584, 587 (W.D.
Tex. 1992)(“A settlement between a plaintiff and
the non-diverse defendant is final enough to
support removal, even if the non-diverse defendant
has not been severed from the case.”); King v.
Kayak Mfg. Corp., 688 F. Supp. 227, 229-30 (N.D.
W. Va. 1988) (allowing removal based on an oral
ruling by a judge that a non-diverse defendant was
no longer a party to the case due to a
settlement).
Id.

The court, therefore, concluded “the removing defendants did

17 - OPINION AND ORDER

not need to await entry of an order in state court dismissing the
non-diverse defendant before filing their Notice of Removal.”
Id.

Thus, the court concluded the defendants’ notice of removal

was timely.
Here Plaintiffs voluntarily dismissed the nondiverse
Defendants pursuant to Oregon Rule of Civil Procedure 54A(1).4
Oregon Rule of Civil Procedure 54A(1) provides in relevant part:
[A] plaintiff may dismiss an action in its
entirety or as to one or more defendants without
order of court by filing a notice of dismissal
with the court and serving the notice on all other
parties not in default not less than 5 days prior
to the day of trial if no counterclaim has been
pleaded.5
Emphasis added.

Accordingly, a plaintiff’s voluntary dismissal

of a defendant in state court pursuant to Oregon Rule of Civil
Procedure 54A(1) is effective without an order of the state court
when a dismissal is filed.

The Court, therefore, concludes

Plaintiffs’ December 19, 2016, Rule 54A(1) Notices of Dismissal

4

The record also reflects the state court granted Alignment
World’s Motion for Summary Judgment and dismissed Plaintiffs’
claims against Alignment with prejudice notwithstanding
Plaintiffs’ earlier filed Notice of Dismissal with Prejudice as
to Alignment World. It is, therefore, unclear whether
Alignment’s dismissal from the state-court action constitutes a
voluntary action by Plaintiffs. Because the Court concludes
CTA’s removal was untimely, however, the Court need not resolve
that issue.
5

Defendants did not plead any counterclaims in this matter.

18 - OPINION AND ORDER

with Prejudice were “other paper from which [CTA could] first
. . . ascertain[] that the case is one which is or has become
removable.”

As such, the Court also concludes this matter became

removable on December 19, 2016.

See, e.g., Chohlis v. Cessna

Aircraft Co., 760 F.2d 901, 903 n.2 (8th Cir. 1985)(settlement
between plaintiff and the nondiverse party was sufficiently final
to support removal even though the nondiverse party had not been
adequately severed from the state-court action at the time of
removal); Ratcliff v. Fibreboard Corp., 819 F. Supp. 584, 587
(W.D. Tex. 1992)(“A settlement between a plaintiff and the
non-diverse defendant is final enough to support removal, even if
the nondiverse defendant has not been severed from the case.”);
King v. Kayak Mfg. Corp., 688 F. Supp. 227, 229-30 (N.D. W.
Va. 1988)(allowing removal based on an oral ruling by a judge
that a nondiverse defendant was no longer a party to the case).
As noted, CTA removed this action on February 8, 2017, which is
more than 30 days after December 19, 2016, the date on which this
action became removable.

The Court, therefore, concludes CTA’s

removal was untimely.
Accordingly, the Court grants Plaintiffs’ Motion for Remand.

CONCLUSION
For these reasons, the Court GRANTS Plaintiffs’ Motion (#29)
for Remand, DENIES as moot all other pending Motions, and REMANDS
19 - OPINION AND ORDER

this matter to Multnomah County Circuit Court.
IT IS SO ORDERED.
DATED this 18th day of May, 2017.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

20 - OPINION AND ORDER