United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Kellen Dreyer's
Request for Additional Time, or in the Alternative, Request
to Stay. Plaintiff moves for 30 days additional time for the
following: to respond to defendant Swift Transportation Co.
of Arizona's (“Swift Transportation”) motion
to dismiss; to file an amended complaint; and/or to move to
remand. In the alternative, plaintiff moves that the Court
stay this matter for 30 days. Defendant Swift Transportation,
the only defendant that has entered an appearance in this
matter, does not object to plaintiff's request for
additional time to respond to its motion to dismiss.
Defendant Swift Transportation does object to plaintiff's
request for additional time to file a motion to remand and to
file an amended complaint. It also objects to plaintiff's
alternative motion to stay. Plaintiff did not file a reply
memorandum, and the time to do has expired. For the following
reasons, the Court grants plaintiff's motion for
additional time to respond to defendant Swift
Transportation's motion to dismiss. In all other
respects, the motion is denied.
filed suit against defendants Swift Transportation and
Kenneth Ard on May 16, 2019, in the Circuit Court for Lincoln
County, Missouri. The claims in plaintiff's petition
arise from a motor vehicle collision. Plaintiff brings the
following five counts in state law: negligence against
Kenneth Ard (Count I); negligence per se against
defendant Kenneth Ard (Count II); negligence against
defendant Swift Transportation (Count III); negligent hiring,
training, supervising, and retaining against defendant Swift
Transportation (Count IV); and negligence per se
against defendant Swift Transportation (Count V).
28, 2019, defendant Swift Transportation removed the case to
this District pursuant to 28 U.S.C. §§ 1441 and
1446. In its Notice of Removal, Swift Transportation avers
that this Court has jurisdiction to hear the dispute on the
basis of diversity subject matter jurisdiction under 28
U.S.C. § 1332.
Swift Transportation was the only defendant to join in
removal. According to Swift Transportation, defendant Kenneth
Ard died on May 7, 2018. Defendant Swift Transportation attached
to its Notice of Removal the purported death certificate of
defendant Kenneth Ard.
Notice of Removal, defendant Swift Transportation argues
diversity of citizenship exists in this case because
defendant Swift Transportation and plaintiff Dreyer are
completely diverse. As for defendant Kenneth Ard, alleged in
the petition to be a resident of Missouri, Swift
Transportation argues his citizenship is not relevant to
determine the existence of diversity jurisdiction because he
died more than a year ago and no probate estate has been
opened on his behalf. Defendant Swift Transportation argues
that at most defendant Kenneth Ard is a nominal party in this
suit and his citizenship does not break diversity.
5, 2019, defendant Swift Transportation filed a motion to
dismiss Counts IV and V of plaintiff's petition pursuant
to Federal Rule of Civil Procedure 12(b)(6). That same day,
Swift Transportation also filed an answer to the remaining
count against it. Plaintiff has not responded to the motion
states in the motion at bar that he is in the process of
confirming whether defendant Kenneth Ard has died. Plaintiff
contends that if Kenneth Ard has died, which appears likely,
“an estate will need to be set up, requiring plaintiff
to file an Amended Petition/Complaint and/or Motion to
Remand.” Doc. 12 at 1-2. Plaintiff requests that he
be allowed 30 additional days to respond to defendant's
motion to dismiss, and/or to file a motion to remand, and/or
to file an amended complaint. In the alternative, plaintiff
moves for the Court to enter a 30-day stay in these
extent plaintiff moves for a 30-day extension of time to
respond to defendant Swift Transportation's motion to
dismiss, the Court grants the motion. Plaintiff has shown
good cause for the motion, and defendant consents to the
request. The Court will allow plaintiff 30 additional days to
file a response memorandum to defendant's motion to
plaintiff's request for extension of time to file an
amended complaint, plaintiff's motion is denied as moot.
Under Rule 15(a)(1)(B) of the Federal Rules of Civil
Procedure, a plaintiff may amend a complaint once as a matter
of course up to 21 days after service of a Rule 12(b)(6)
motion to dismiss. Here, plaintiff's deadline to amend
has not run and, therefore, plaintiff's motion for
additional time to amend his complaint is denied without
prejudice as moot.
also moves for 30 days additional time to file a motion to
remand. Under 28 U.S.C. § 1447(c), “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 of removal under section
1446(a).” This statute is strictly construed and the
Court lacks the authority to extend the time for plaintiff to
file a motion to remand asserting a procedural defect in the
removal. Id.; see also Ariel Land Owners, Inc.
v. Dring, 351 F.3d 611, 613 (3d Cir. 2003)
(“[1447(c) ] is clear that, if based on a defect other
than jurisdiction, remand may only be effected by a timely
motion”); 16 James Wm. Moore et al., Moore's
Federal Practice § 107.151[d] (3d ed. 2018).
That said, the 30-day limit only applies to motions to remand
based on a procedural defect in the removal process. 28
U.S.C. § 1447(c). A motion to remand for lack of subject
matter jurisdiction is not subject to the 30-day limitation.
28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”). In
his motion, plaintiff does not state on what grounds he seeks
to file a motion to remand. If it is based on a procedural
defect in the removal process, the motion must be made within
30 days after the filing of the notice of removal. If the
motion is based on the Court's lack of subject matter
jurisdiction, the motion can be made after §
1447(c)'s 30-day deadline has expired.
plaintiff moves in the alternative for a 30-day stay in the
case. The Court has the discretion to enter a stay under its
authority to manage its docket. In light of the Court's
rulings on plaintiffs motions for ...