O'Leary v. Simply Thick, LLC et al

Filing 14

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 9/17/2013. (nmcc )

L
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

SEP I 7 2013

Alexandria Division
CLERK. U.S. DISTRICT COURT
ALEXANDRIA, VIRGINIA

MELISSA C. O'LEARY,

as Administrator and Personal

Representative ofthe Estate ofNolan
O'Leary, deceased,
Plaintiff,
v.

Case No. l:13-cv-1015

SIMPLY THICK, LLC; THERMO
PAC, LLC; AMERIQUAL GROUP,
LLC; H.J. HEINZ COMPANY; and
INOVA HEALH CARE SERVICES,
Defendants.

MEMORANDUM OPINION

At issue in this removed state action is whether remand is required on the ground that

diversity ofcitizenship did not exist at the time ofremoval. The removing defendants point out
that the state court directed plaintiff to serve the non-diverse defendant within two weeks "'or else
the case shall be severed as to [the non-diverse defendant.]" O'Leary v. Simply Thick, LLC, el «/.,
2012-16995 (Fairfax Cir. Ct. July 19, 2013) (Order). Given this, the removing defendants argue
thatseverance occurred automatically when the non-diverse defendant was not properly served
within the allotted time. Plaintiffcounters (1) that no automatic severance occurred; (2) that the

state court order contemplated not automatic severance if service was not timely effected, but
return of the case to the state court's docket instead; and (3) in any event, that service of the

complaint without process was timely effected and whether this was proper service given the
non-diverse defendant's waiver of any service defect was for the state court to resolve.

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