Van Tassel v. State Farm Lloyds et al

Filing 17

OPINION AND ORDER denying 12 Motion for Continuance.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES VAN TASSEL,
Plaintiff,
VS.
STATE FARM LLOYDS, INC. AND
ANDRE HUTCHINS,
Defendants.

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Civ. A. H-14-2864

OPINION AND ORDER
Pending before the Court in the above referenced cause,
alleging underpayment of a damage claim under a property insurance
policy after a storm in Alvin, Texas, is Plaintiff Charles Van
Tassel’s

motion

to

delay consideration (instrument #12) of

Defendant State Farm Lloyds’ pending motion for summary judgment
(#7) and to rule first on Plaintiff’s third motion to remand under
28 U.S.C. § 1446(c)(1)1 on the grounds that the third removal of
this action occurred more than one year after the suit was filed.
Van Tassel claims that “a court should consider subject matter
jurisdiction before it addresses an attack on the merits.”2

1

Plaintiff erroneously identifies § 1443(b)(3) for this
procedural rule. Title 28 U.S.C. § 1446(c)(1) provides,
A case may not be removed under subsection
(b)(3) on the basis of jurisdiction conferred
by section 1332 more than 1 year after
commencement of the action, unless the
district court finds that the plaintiff acted
in bad faith in order to prevent a defendant
from removing the action.
2

Citing Carr v. Montgomery County,
F. Supp. 3d
, 2014 WL 4983547, at *2 (S.D. Tex. Oct. 6, 2014).
-1-

In response in opposition and while insisting that it
did remove this case in a timely fashion, State Farm Lloyds argues
the motion to delay should be denied because Plaintiff’s untimely
third motion to remand does not raise any issue about subject
matter jurisdiction, but instead argues that the removal was
procedurally deficient under § 1447(c).3

Section 1447(c) states,

A motion to remand the case on the basis of
any defect other than lack of subject matter
jurisdiction must be made within 30 days
after the filing of the notice or removal
under section 1446(a).
State Farm Lloyds timely removed this suit on October 8, 2014
pursuant

to

diversity

jurisdiction,

arguing

that

adjuster Andre Hutchins was improperly joined.
Removal).

Defendant

#1 (Notice of

Plaintiff did not file his motion to remand until

January 22, 2015, one hundred and six days later.

#8.

If a

plaintiff fails to timely object to a procedural defect, such as
untimely removal, he waives his right to remand on that ground.
Coury v. Prot, 85 F.3d 244, 252 (5th Cir. 1996).

Because the

failure to remove timely is a procedural, not a jurisdictional,
defect, a motion to remand must be filed within 30 days of the
filing of the notice of removal.

In re Shell Oil Co., 932 F.2d

1518, 1523 (5 th Cir. 1991), cert. denied sub nom. Acuna Castillo
v. Shell Oil Co., 502 U.S. 1049 (1993); Howard v. Northwest
Airlines, Inc., 793 F. Supp. 129, 131 (S.D. Tex. 1992).

Failure

to

of the

file

such

a

timely

motion

may

3

result

in

waiver

State Farm Lloyds points out this is the first motion
to remand that Plaintiff has filed since adding State Farm Lloyds
to the suit on September 8, 2014 in his First Amended Petition
(#15-1).
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plaintiff’s right to object to the removal on that ground. Barnes
v. Westinghouse Elec. Corp. , 962 F.2d 513, 516 (5

th

Cir. 1992);
th

Besler v. St. Paul Fire & Marine Ins. , 965 F.2d 5, 8 (5

Cir.

1992)(If a plaintiff does not timely object to a defendant’s
untimely notice of removal, the plaintiff has waived its right to
remand

on

that

ground.).

Thus the Court should not defer

consideration of State Farm Lloyd’s motion for summary judgment on
limitations grounds because Plaintiff’s motion to remand does not
address or challenge subject matter jurisdiction.
The Court agrees with State Farm Lloyds and accordingly
ORDERS that Plaintiff’s motion to delay consideration of
State Farm Lloyd’s motion for summary judgment is DENIED.
SIGNED at Houston, Texas, this

5th

day of

March ,

2015.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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