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Chapman v. Trinity Highway Products, LLC

United States District Court, N.D. Georgia, Atlanta Division

September 7, 2017

BOBBY J. CHAPMAN, Plaintiff,
v.
TRINITY HIGHWAY PRODUCTS, LLC, and TRINITY INDUSTRIES, INC., Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Trinity Industries, Inc.'s (“TI”) Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction [5] (“Motion to Dismiss for Lack of Personal Jurisdiction”), Defendants Trinity Highway Products, LLC (“THP”) and TI's (together, “Defendants”) Rule 12(b)(6) Motion to Dismiss Count V of Plaintiff's Complaint for Failure to State a Claim [6] (“Motion to Dismiss for Failure to State a Claim”), Plaintiff Bobby J. Chapman's (“Plaintiff”) Motion for Remand [9], and Plaintiff's Motion to Stay the Court's Ruling on Defendant's Motion to Dismiss Pending Ruling on Plaintiff's Motion for Remand [10] (“Motion to Stay”).

         I. BACKGROUND

         On May 20, 2015, Plaintiff filed his Complaint [1.2] (“Original Complaint”) in the State Court of Fulton County, asserting product liability claims against Defendants TI and THP. The Original Complaint alleged that, on May 22, 2013, “Plaintiff was traveling north on Interstate 85 in the right lane and, after losing consciousness, slowly veered into and struck a guardrail.” (Orig. Compl. ¶ 6). Plaintiff alleged that “the guardrail was defectively designed in that it acted like a spear and penetrated through the front of and all the way through the back of the vehicle, which resulted in Plaintiff sustaining severe and significant injuries.” (Orig. Compl. ¶ 8). Defendants did not remove the case to federal court and, on July 15, 2016, Plaintiff voluntarily dismissed the Original Complaint without prejudice. ([9.7]).

         On January 13, 2017, Plaintiff, represented by new counsel, filed his second Complaint [1.1] (“Renewed Complaint”) in the State Court of Fulton County. The Renewed Complaint, like the Original Complaint, asserts product liability claims arising out of Plaintiff's car accident on May 22, 2013.[1] On January 17, 2017, Defendants received, by email, a copy of the Renewed Complaint[2] and, on February 15, 2017, they removed this action to federal court on the basis of diversity jurisdiction. ([1]; [9.9]; [15] at 2).

         On March 6, 2017, Defendants filed their Motions to Dismiss. On March 17, 2017, Plaintiff moved to remand this case to state court on the grounds that Defendants' Notice of Removal [1] was not timely filed. Plaintiff also seeks to stay Defendants' Motions to Dismiss pending the Court's ruling on his Motion for Remand.

         II. PLAINTIFF'S MOTION FOR REMAND

         A. Legal Standard

         A notice of removal must be filed within the time period prescribed by 28 U.S.C. § 1446:

(b) Requirements; generally.-(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
. . . .
(3) Except as provided in subsection (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 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.
(c) Requirements; removal based on diversity of citizenship.-(1) 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 has acted in bad faith in order to prevent a defendant from removing the action.

28 U.S.C. §§ 1446(b)-(c).

         Under subsection (b)(1), a notice of removal must be filed within 30 days after the defendant receives a copy of the “initial pleading” on which the action is based. See Allen v. Christenberry, 327 F.3d 1290, 1296 n.3 (11th Cir. 2003) (“Generally, a defendant can only remove a case to federal court within 30 days after receiving the pleading.”). Subsection (b)(3) provides additional time for removal “if the case stated by the initial pleading is not removable.” If that condition is triggered, the notice of removal may be filed within 30 days after defendant receives a “paper from which it may first be ascertained that the case is” removable. Subsection (c) states that, unless plaintiff acted in bad faith, a diversity case may not be removed under subsection (b)(3) more than one year after the action “commenced.” Subsection (c) does not modify or limit the 30-day period in subsection (b)(1). See Lee v. Lilly Trucking of Virginia, Inc., No. 2:12-CV-74- MEF, 2012 WL 960989, at *1 (M.D. Ala. Mar. ...


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