United States District Court, N.D. Georgia, Atlanta Division
BOBBY J. CHAPMAN, Plaintiff,
TRINITY HIGHWAY PRODUCTS, LLC, and TRINITY INDUSTRIES, INC., Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Trinity Industries,
Inc.'s (“TI”) Motion to Dismiss
Plaintiff's Complaint for Lack of Personal Jurisdiction
 (“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  (“Motion to Dismiss for Failure to State a
Claim”), Plaintiff Bobby J. Chapman's
(“Plaintiff”) Motion for Remand , and
Plaintiff's Motion to Stay the Court's Ruling on
Defendant's Motion to Dismiss Pending Ruling on
Plaintiff's Motion for Remand  (“Motion to
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]).
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. On January 17, 2017, Defendants
received, by email, a copy of the Renewed
Complaint and, on February 15, 2017, they removed
this action to federal court on the basis of diversity
jurisdiction. (; [9.9];  at 2).
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
 was not timely filed. Plaintiff also seeks to stay
Defendants' Motions to Dismiss pending the Court's
ruling on his Motion for Remand.
PLAINTIFF'S MOTION FOR REMAND
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).
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. ...