United States District Court, W.D. Missouri, Southern Division
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT
the Court is Plaintiff's Motion to Remand (doc. 19).
Defendant TEI Construction Services, Inc., opposes
Plaintiff's Motion to Remand. Accordingly, for the
reasons below, Plaintiff's Motion to Remand (doc. 19) is
GRANTED, and it is ORDERED
that this action is remanded to the Circuit Court of Texas
December 16, 2014, Plaintiff filed this action in the Circuit
Court of Texas County, Missouri against Defendant Jarvis and
Defendant Sowell. See Adam Vasseur v. Matthew Sowell, Joe
Jarvis, TEI Construction Services, Inc., 14TE-CC00539
(“State Action”). On November 17, 2017, Plaintiff
amended its petition to add Count III against TEI
Constructions Services Inc., as a new defendant. On January
9, 2018, TEI Constructions Services Inc., removed to this
Court based on diversity jurisdiction pursuant to 28 U.S.C.
§§ 1441 and 1446.
federal court must ensure jurisdiction is proper before it
turns to the merits of the case. Carlson v. Arrowhead
Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir.
2006). A party may remove an action to federal court if there
is complete diversity of the parties and the amount in
controversy exceeds $75, 000.00. 28 U.S.C. §§
1332(a) and 1441(a). If the case does not fall within the
district court's original jurisdiction, the court must
remand the case to the state court from which is was removed.
28 U.S.C. § 1447(c). A party seeking removal and
opposing remand carries the burden of establishing federal
subject-matter jurisdiction by a preponderance of the
evidence. In re Prempro Prods. Liab. Litig., 591
F.3d 613, 620 (8th Cir. 2010). Furthermore, any doubts about
the propriety of removal should be resolved in favor of
remand. In re Bus. Men's Assurance Co. of Am.,
992 F.2d 181, 183 (8th Cir. 1993) (per curiam).
notice of removal must be filed within thirty days of the
defendant's receipt of the initial pleadings. 28 U.S.C.
§ 1446(b)(1). If a case is not originally removable, a
defendant who receives a paper or pleading that indicates the
case is now removable may remove the case to federal court
within thirty days of receiving the paper or pleading.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69
(1996). However, a case cannot be removed to federal court
based on diversity of citizenship “more than one year
after commencement of the action.” 28 U.S.C. §
1446(b). See Lindsay v. Dillard's, Inc., 306
F.3d 596, 600 (8th Cir. 2002) (the “[f]ailure of a
party to remove within the one year limit precludes any
further removal based on diversity”); Jackson v.
C.R. Bard, Inc., 2017 WL 2021087, at *3 (E.D. Mo. May
12, 2017) (the rationale behind the one-year limitation is
that a suit filed in state court should remain in state court
if the case has been using state resources for over a year).
After a defendant has filed a notice of removal in federal
court, a plaintiff objecting to removal may file a motion to
remand the case to state court within thirty days of the
filing of the notice of removal. Caterpillar Inc.,
519 U.S. at 69. However, this thirty-day limit does not apply
to jurisdictional defects, and a district court can remand a
case any time before final judgment if it determines subject
matter jurisdiction is lacking. Id.
Court must determine when an action “commences”
to start the clock for 28 U.S.C. § 1446's one-year
limitation. While the Eighth Circuit has not addressed this
exact question, district courts in the Eighth Circuit agree
that an action commences when the original complaint is filed
in state court. See Jackson, 2017 WL 2021087, at *3
(E.D. Mo. May 12, 2017); Schafer v. Bayer
Cropscience LP, 2010 WL 1038518, at * 1 (E.D. Ark. March
19, 2010) (same); Clark v. Wyeth, 2012 WL 3027916,
at *3 (E.D. Mo. July 24, 2012) (same); Boyke v. Celadon
Trucking Servs., Inc., 2009 WL 1393870, at * 3 (E.D. Mo.
May 15 2009) (same). Further, an action can only commence
once, and while pleadings may be amended, amended pleadings
do not commence a new action. Arnold Crossroads v. Gander
Mountain Co., 2011 WL 2983511, at *2 (E.D. Mo. July 22,
2011); Jackson, 2017 WL 2021087, at *3 (same);
Devalk v. Wyeth, 2012 WL 2885904, at *4 (E.D. Mo.
July 13, 2012) (“[b]ecause removal statutes are
narrowly construed, section 1446's one-year limit runs
from the initial commencement of an action, rather than any
later amendment or other pleading that causes the case to
become removable”). Accordingly, the Court finds this
action commenced on December 16, 2014, when the complaint was
filed in state court.
the State Action commenced in December 2014, Defendants filed
their Notice of Removal on January 9, 2018, three years after
the State Action was filed and well beyond the one-year
limitation for removal on diversity grounds. While Plaintiff
waived its right to seek remand based on procedural defects
in the removal process, the one-year limitation in 28 U.S.C.
§ 1446(c) is jurisdictional and cannot be waived.
Wejrowski v. Wyeth, 2012 WL 2367388, at *3 (E.D. Mo.
June 21, 2012). See also Clark, 2012 WL 3027916, at
*3 (E.D. Mo. July 24, 2012) (“the one-year time
limitation in . . . [28 U.S.C. § 1446] is
jurisdictional, [and] it is not subject to wavier or the
30-day time limitation set out in 28 U.S.C. § 1447(c) .
. . [a]s a result, Plaintiffs could not have waived their
right to seek remand of this case to state court”);
Schindler, 2010 WL 11579910, at *3 (“[t]he
one-year limit is jurisdictional and absolute . . . .
Defendants removed this case after the one-year time limit
ran. Removal was therefore untimely, and I [the Court] lack
jurisdiction over this action. The case must be
remanded”); Advanta Tech. Ltd. v. BP Nutrition,
Inc., 2008 WL 4619700, at *4 (E.D. Mo. Oct. 16, 2008)
(28 U.S.C. § 1446's one-year limitation is
jurisdictional and cannot be waived); Bancservices Group,
Inc. v. Stockgrowers State Bank, 2008 WL 922306, at *1
(E.D. Mo. Mar. 31, 2008) (same); Bancservices Group, Inc.
v. American National Bank, 2008 WL 585112, at *1 (E.D.
Mo. Feb. 29, 2008) (same). Accordingly, this Court lacks
jurisdiction pursuant to 28 U.S.C. § 1446's one-year
limitation, and remand is proper. See 28 U.S.C.
§ 1447(c) (a district court must remand the case
“[i]f at any time before final judgment it appears that
the district court lacks subject-matter
Plaintiff's Motion to Remand (doc. 19) is
GRANTED, and it is ORDERED
that this case is remanded to the Circuit Court of Texas