Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARY M. COLLINS, Individually and as Personal Representative of the Heirs and Estate of JAMES DANIEL COLLINS, Deceased, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY; ET AL., Defendants. : : : : : : : : : : : : : Case No. 07-CV-149

(Removed on March 14, 2007, from the Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 06C-02281-ASB)

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO REMAND

WEISS & SAVILLE, P.A. Yvonne Takvorian Saville, SB No. 3430 1220 North Market Street, Suite 604 P.O. Box 370 Wilmington, DE 19899 Phone: 302/656-0400 Fax: 302/656-5011

BARON & BUDD, P.C. The Centrum, Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 Phone: 214/521-3605 Fax: 214/520-1181

Attorneys for Plaintiffs April 12, 2007

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TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. II. III. IV. STATEMENT OF NATURE AND STAGE OF THE PROCEEDING . . . . . . . . . 1 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. V OLKSWAGEN H AS F AILED TO E STABLISH T HAT ITS R EMOVAL IS T IMELY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. 2. The one-year period for removal is mandatory . . . . . . . . . . . . . . . . 3 Commencement of an action for purposes of the one-year period for removal is the date of the case is originally filed . . . . . . 4 Congress purposely intended to limit access to a federal forum in drafting the one-year period for removal . . . . . . . . . . . . . . . . . . . 8

3.

B.

V OLKSWAGEN H AS N OT E STABLISHED T HAT A NY E XCEPTIONS TO THE O NE-Y EAR R ULE A RE A PPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Volkswagen has failed to assert any argument for an exception based on fraudulent joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Volkswagen has failed to prove that any equitable exception would apply to the one-year rule in this case. . . . . . . . . . . . . . . . . . 11

2.

V.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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INDEX OF AUTHORITIES CASES PAGE(S)

Arango v. Guzman Travel Advisors Corp. 621 F.2d 1371 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ardoin v. Stine Lumber Co. 298 F.Supp.2d 422 (W.D.La. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ariel Land Owners, Inc. v. Dring 351 F.3d 611 (3rd Cir. Dec. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 9 In re Briscoe 448 F.3d 201 (3rd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12 Canton Textile Mills, Inc. v. Lathem 317 S.E.2d 189 (Ga. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Caterpillar Inc. v. Lewis 519 U.S. 61 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Clingan v. Celtic Life Ins. Co. 244 F.Supp.2d 1298 (D.C. Ala.2003)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Cabalceta v. Standard Fruit Co. 883 F.2d 1553 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Dukes v. U.S. Healthcare, Inc. 57 F.3d 350 (3rd Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Ferguson v. Sec. Life of Denver Ins. Co. 996 F. Supp. 597 (N.D. Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Holloway v. Jackson 412 So.2d 774 (Ala. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Kuhn v. Brunswick Corp. 871 F. Supp. 1444 (N.D. Ga. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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CASES

PAGE(S)

Lytle v. Lytle 982 F. Supp. 671 (E.D. Mo. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Mathew v. McCoy 847 S.W.2d 397 (Tex. App.­ Houston [14th Dist.] 1993) . . . . . . . . . . . . . . . . . . . . . . . . 5 Naef v. Masonite Corp. 923 F. Supp. 1504 (S.D. Ala. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Perhats Assocs., Inc. v. Fasco Indus., Inc. 843 F. Supp. 424 (N.D. Ill. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Price v. Messer 872 F. Supp. 317 (S.D. W. Va. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Provenza ex rel. Provenza v. Yamaha Motor Co. Ltd. 295 F.Supp.2d 1175 (D.Nev. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Robinson v. Ruiz 772 F. Supp. 212 (D. Del. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Russell Corp. v. Am. Home Assur. Co. 264 F.3d 1040 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 Santiago v. Barre Nat'l, Inc. 795 F. Supp. 508 (D. Mass. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sasser v. Ford Motor Co. 126 F. Supp.2d 1333 (M.D. Ala.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8-9 Serv. Asset Mgmt. Co. v. Hibernia Corp. 80 F. Supp.2d 626 (E.D. Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Singh v. Daimler-Benz AG 9 F.3d 303 (3rd Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8 Sledz v. Flintkote Co. 209 F.Supp.2d 559 (D. Md. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Smith v. MBL Life Assurance Corp. 727 F. Supp. 601 (N.D. Ala.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 iii

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CASES

PAGE(S)

Tedford v. Warner-Lambert 327 F.3d 423 (5th Cir.2003); . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Wilbanks v. N. Am. Coal Corp. 334 F.Supp.2d 921 (S.D.Miss.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Williams v. Hofmann Balancing Techniques, Ltd. 776 A.2d 4 (Md. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Woods v. Firestone Tire & Rubber Co. 560 F. Supp. 588 (D. Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Zumas v. Owens-Corning Fiberglas Corp. 907 F. Supp. 131 (D. Md. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES AND RULES 28 U.S.C. 1446(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Delaware Superior Court Civil Rule 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

LEGISLATIVE HISTORY H.R.Rep. No. 889, at 72(1988), reprinted in 1988 U.S.C.C.A.N. 5982 . . . . . . . . . . . . . . . . . . 7, 8

SECONDARY SOURCE 14A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3732 at 527-30 (2d ed. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARY M. COLLINS, Individually and as Personal Representative of the Heirs and Estate of JAMES DANIEL COLLINS, Deceased, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY; ET AL., Defendants. : : : : : : : : : : : : : Case No. 07-CV-149

(Removed on March 14, 2007, from the Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 06C-02281-ASB)

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO REMAND

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: COMES NOW MARY M. COLLINS, acting Individually and as Personal Representative of the Heirs of the ESTATE OF JAMES DANIEL COLLINS, Deceased ("Plaintiff"), and files this Brief in Support of Plaintiff's Motion to Remand. Plaintiff would respectfully show the Court as follows: I. STATEMENT OF NATURE AND STAGE OF THE PROCEEDING This case was originally filed in Delaware state court on February 28, 2006 seeking damages related to asbestos exposure. The case was removed to this Court by the defendant on March 14, 2007. Discovery has been completed as to all defendants except for the removing defendant. All defendants have settled or have otherwise been dismissed, except for the

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removing defendant. No action has been taken by this Court since the case was removed. This motion requests that this Court remand the case to the state court from which it was removed. II. SUMMARY OF THE ARGUMENT 1. Defendant failed to file its Notice of Removal in a timely manner as required by 28 U.S.C. 1446(b). Section 1446(b) provides for a strict one-year removal period from the date of commencement of the lawsuit. 2. The date of commencement from which the period of removal is measured begins on the date the original complaint is filed initiating the lawsuit. 3. Congressional intent clearly indicates that the one-year period for removal was intended to limit access to the federal courts. Extending the period for removal would thwart the very purposes of the limitation expressly intended by Congress. 4. There are no exceptions recognized in this jurisdiction that would permit Defendant to remove this case beyond the mandatory period provided for in section 1446(b). III. STATEMENT OF FACTS Plaintiff originally filed this case in Delaware state court on February 28, 2006. (Original Complaint, attached as Exhibit "A" to this motion). On March 14, 2007, Volkswagen filed its notice of removal in this case based on diversity jurisdiction. (Volkswagen's Notice of Removal). Defendant, Volkswagen of America, Inc.("Volkswagen"), was added as a defendant in the First Amended Complaint, filed on October 17, 2006. (Plaintiff's First Amended Complaint Attached to Volkswagen's Notice of Removal as Exhibit A). The notice of removal

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was not filed until more than one-year after the case was originally filed. (Volkswagen's Notice of Removal; Original Complaint, Exhibit "A"). IV. ARGUMENT AND AUTHORITIES A. Volkswagen Has Failed to Establish That Its Removal Is Timely.

Plaintiff originally filed this case in Delaware state court on February 28, 2006. (Original Complaint, Exhibit "A"). On March 14, 2007, Volkswagen filed its notice of removal in this case based on diversity jurisdiction. The notice of removal, however, was filed beyond the strict one-year period for removal set forth in 28 U.S.C. 1446(b). "Removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." In re Briscoe, 448 F.3d 201, 217 (3rd Cir. 2006). Further, "comity requires federal courts to allow state courts to proceed with their cases unless those cases are clearly and unequivocally removable." Smith v. MBL Life Assurance Corp., 727 F.Supp. 601, 603 (N.D.Ala.1989). Considering these principles, and the fact that Volkswagen has offered no legal or factual support for permitting it to remove this case beyond the one-year period for removal, this Court should remand this case to the state court. 1. The one-year period for removal is mandatory.

No action may be removed based on diversity jurisdiction more than one-year after commencement. 28 U.S.C. 1446(b); Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996). The Third Circuit has recognized that this one-year limitation period is absolute and not subject to any equitable exceptions. Singh v. Daimler-Benz AG, 9 F.3d 303, 309 (3rd Cir. 1993); see also Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (characterizing the one-year time limit as one of several "bright line limitations" that "are an inevitable feature of a
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court system of limited jurisdiction that strictly construes the right to remove."); see also Perhats Assocs., Inc. v. Fasco Indus., Inc., 843 F.Supp. 424, 427 (N.D.Ill. 1994) (noting that "the one-year outside limit is certainly stated as an absolute prohibition" on removal to federal court). In short, "[t]here is no question that the statute prohibits removal outside of certain time limits. . . ." Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 615 n.2 (3rd Cir. Dec. 2003). The time limits for removal are mandatory and must be strictly applied. Robinson v. Ruiz, 772 F.Supp. 212 (D.Del. 1991); see generally 14A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3732 at 527-30 (2d ed. 1985). The rule of strict construction is particularly important in the context of the one-year time limitation, which was enacted as part of the Judicial Improvements and Access to Justice Act of 1988 for the specific purpose of "reduc[ing] the number of cases in federal court by restricting diversity jurisdiction." Ferguson v. Sec. Life of Denver Ins. Co., 996 F.Supp. 597, 601 (N.D. Tex. 1998); see also Santiago v. Barre Nat'l, Inc., 795 F.Supp. 508, 510 (D. Mass. 1992) ("[T]he Act's legislative history reinforces the interpretation that the one-year bar is absolute"). Specifically, the mandatory time limitation set forth in § 1446 is strictly construed and may not be extended. Robinson v. Ruiz, 772 F.Supp. 212 (D.Del. Aug 14, 1991); see generally 14A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3732 at 527-30 (2d ed. 1985). 2. Commencement of an Action for Purposes of the One-Year Period for Removal Is the Date the Case Is Originally Filed.

Volkswagen asserts that the notice of removal was filed "within one year of the commencement of the action against VWoA." Volkswagen's Notice of Removal at 4 (emphasis

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added). This assertion misrepresents the applicable law1 and the factual background of this case. The action that Volkswagen removed to this Court and which is the subject of this motion to remand is Delaware Civil Action Number 06C-02-281 ASB, commenced on February 28, 2006.2 Although Volkswagen appears to argue that the allegations against it constitute an independent action with a different commencement date than the rest of the defendants, Delaware law has no provision for multiple commencement dates for an action. The original complaint in this action was filed over one year before Volkswagen sought removal. Without citing any authority, Volkswagen appears to assert that a new "action" is "commenced" for purposes of section 1446(b) whenever a new defendant is added. This position would be appropriate in the context of a statute of limitations, and is in fact the rule in most jurisdictions regarding statutes of limitations. See, e.g., Holloway v. Jackson, 412 So.2d 774, 778 (Ala. 1982); Mathew v. McCoy, 847 S.W.2d 397, 400 (Tex. App. ­ Houston [14th Dist.] 1993); Williams v. Hofmann Balancing Techniques, Ltd., 776 A.2d 4, 19 (Md. App. 2001). But these rulings on the limitations defense do not resolve the question of whether section 1446(b) bars removal in this case. In contrast to section 1446(b), which is mandatory and intended to restrict federal jurisdiction, statutes of limitations are "practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after

The date of commencement under section 1446 is determined according to state law. See Provenza ex rel. Provenza v. Yamaha Motor Co. Ltd., 295 F.Supp.2d 1175 (D.Nev. 2003); Zumas v. Owens-Corning Fiberglas Corp., 907 F.Supp. 131 (D.Md. 1995). Delaware Superior Court Civil Rule 3(a) provides that an action is commenced by filing with the Prothonotary a complaint and a praecipe. This action was therefore commenced on February 28, 2007 when Plaintiff filed the original complaint and praecipe. There is no provision in Delaware law for a new "commencement" whenever a defendant is added by amendment.
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memories have faded, witnesses have died or disappeared, and evidence has been lost." Canton Textile Mills, Inc. v. Lathem, 317 S.E.2d 189, 193 (Ga. 1984) (quoting Chase Secs. Corp. v. Donaldson, 325 U.S. 304 (1945)). In Sledz v. Flintkote Co., 209 F.Supp.2d 559, (D. Md. 2002), the court addressed this issue directly. In Sledz, the defendant cited Williams, supra, and argued that under Maryland law, the case did not commence for purposes of section 1446(b) until it was added as a defendant. The court held that "Williams is plainly inapplicable to the present case, as it merely addresses the relation back doctrine in respect to a limitations defense. Williams is not at all useful in assessing the timeliness of a removal ­ an exercise in statutory interpretation ­ by a defendant added in an amended complaint." Id. at 562 (citations omitted). Because section 1446(b) must be strictly construed against removal jurisdiction, and because Congress "could have worded § 1446(b) to be claim or party specific, but chose not to," commencement must be measured from the date of the original complaint. Id. at 563. In Sasser v. Ford Motor Co., 126 F. Supp.2d 1333 (M.D. Ala.2001), the court addressed the same issue: If the words in § 1446(b) ­ "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action" ­ mean within one year of the commencement of the initial action, that is, the filing of the original complaint, then Sasser prevails, because this action was commenced on July 31, 1998, but the removal notice was not filed until May 17, 2000. However, if the words mean within one year of the commencement of the action as to Ford only, then Ford wins, assuming the commencement date of the action is when Ford was added as a party on October 12, 1999. Id. at 1335. The court concluded that "the former interpretation is more appropriate," reasoning that "because `removal statutes are construed narrowly,' [and] `where plaintiff and defendant
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clash about jurisdiction, uncertainties are resolved in favor of remand,' the term `commencement of action' should be understood to refer to commencement of the action initially, and not as to any later addition of a particular party or claim." Id. at 1336 (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994)). Volkswagen's argument that there is a new commencement every time a complaint is amended, runs contrary to the expressed congressional intent behind the one-year limitation. In enacting § 1446(b), Congress emphasized that the intent was to "reduc[e] opportunity for removal after substantial progress has been made in state court." H.R.Rep. No. 889, at 72(1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6032. ("The result is a modest curtailment in access to diversity jurisdiction."). Congress did not qualify "substantial progress" as to each defendant, and Congress made no mention of multiple commencement dates. In fact, it would make little sense to permit multiple commencement dates considering the express congressional intent to prevent removal after "substantial progress" has been made in state court. This interpretation of section 1446(b) acknowledges Congress' intent to create a "bright line" time limit for removal based on diversity jurisdiction. See Russell Corp., supra, at 1050. In addition, this interpretation is consistent with the construction of the term "civil action" in other removal statutes. See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (the term "civil action" in 28 U.S.C. § 1441(d) "denotes the entirety of the proceedings in question;" under section 1441(b), "the `civil action's' removability is determined as to its entirety, not as to particular claims or parties."). As has been held by other district courts, commencement occurs when the initial complaint is filed and the deadline remains one year from the filing date, not the joinder date. See Ardoin v. Stine Lumber Co., 298 F.Supp.2d 422 (W.D.La. 2003) (adding
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plaintiffs); Lytle v. Lytle, 982 F.Supp. 671 (E.D.Mo. 1997) (adding defendant). Simply adding new parties does not "re-commence" an action. In short, Volkswagen's proposed interpretation of section 1446(b) is inconsistent with the language, history and purpose of the statute. Any conflict about when this action commenced for purposes of section 1446(b) should be resolved against removal and in favor of remand. 3. Congress Purposely Intended to Limit Access to a Federal Forum in Drafting the One-Year Period for Removal.

Congress intentionally restricted the ability to remove cases from state court after one year. "While acknowledging that this provision would produce `a modest curtailment in access to diversity jurisdiction,' the House Report emphasized instead that the change would prevent `removal after substantial progress has been made in state court.'" Singh v. Daimler-Benz AG, 9 F.3d 303, 309 (3rd Cir. 1993), quoting, H.R.Rep. No. 889, at 72(1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6032. In crafting this barrier to removal, "Congress recognized that `[r]emoval late in the proceedings may result in substantial delay and disruption.'" Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 615 (3rd Cir. Dec. 2003) quoting H.R.Rep. No. 100-889, at 72. The court in Sasser v. Ford Motor Co. noted that "although the legislative history of § 1446(b) does not specifically address the circumstance presented here, the thrust of the comments in that history support the court's approach. . . . It is apparent from this language that Congress was not concerned with the status of particular claims or parties in a lawsuit but rather with the status of the overall lawsuit. Cases should no longer commute back and forth between federal and state courts as parties and claims are added and dismissed; instead, after one year,

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even in those instances where diversity jurisdiction is present, the cases should simply come to rest in one forum and go to trial." Id. at 1336-37; see also Serv. Asset Mgmt. Co. v. Hibernia Corp., 80 F. Supp.2d 626, 629 (E.D. Tex. 2000) (the word "action" in section 1446(b) "refers to the initial lawsuit filed in state court and not to separate claims added later in the suit."); Lytle v. Lytle, 982 F.Supp. 671, 674 (E.D. Mo. 1997) ("IMG and Gusto did not file their notice of removal until October 1, 1997, well after the one-year period prescribed by § 1446(b) had run. As discussed above, it is simply irrelevant that neither IMG nor Gusto was brought into this action until June of this year."); Price v. Messer, 872 F.Supp. 317, 320-21 (S.D. W.Va. 1995) (holding that "action" commenced for purposes of section 1446(b) when original complaint was filed, not when removing defendant was added). The purpose of section 1446(b) is not to ensure that all defendants have a full year to remove a case. Rather, section 1446(b) was designed to limit access to the federal courts by establishing an absolute deadline for removal. Congress wanted to prevent, not protect, the ability to remove cases that had substantially progressed. Such substantial progress is clearly evident in the present case being that discovery as to all other defendants has been completed and all defendants other than Volkswagen have settled or otherwise been dismissed. This case is precisely the type of case Congress had in mind when it chose to limit the time for removal to one year. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 615 (3rd Cir. Dec. 2003) ("[T]he one-year time limit was intended to remedy the anomalous situation where a change in the parties late in the litigation allows a party to remove for the first time.").

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B.

Volkswagen Has Not Established That Any Exceptions to the One-Year Rule Are Applicable.

There are a few very narrow, and not widely recognized exceptions to the removal time limits. Volkswagen, however, has failed to demonstrate any reasonable basis for applying any exception in this case. 1. Volkswagen has failed to assert any argument for an exception based on fraudulent joinder.

One of the few exceptions to the one-year rule is for cases in which a defendant can prove fraudulent joinder of a diverse defendant. Volkswagen, although alluding to such an accusation, has neither pled nor proven fraudulent joinder. First, any removal based on allegations of fraudulent joinder would be untimely. A defendant seeking removal has the burden "to scrutinize the case and remove it in a timely fashion." Kuhn v. Brunswick Corp., 871 F. Supp. 1444, 1446 (N.D. Ga. 1994). When a defendant seeks to remove based on allegations of fraudulent joinder, the thirty-day time period for removal begins when the defendant "could have intelligently ascertained that the action was removable through reasonable scrutiny of the pleadings and facts of the action as it developed in state court." Naef v. Masonite Corp., 923 F.Supp. 1504, 1512 (S.D. Ala. 1996). Even giving Volkswagen every benefit of doubt possible, it should have been aware of any potential fraudulent joinder argument from the moment it was sued. Id; see also Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298 (D.C.Ala.2003) (remanding on grounds of untimely removal, after concluding that defendant could have ascertained within 30 days of receipt of complaint that it had valid arguments for fraudulent joinder with respect to all claims asserted against nondiverse defendant). The time for asserting fraudulent joinder has long since passed.
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Second, even if Volkswagen could argue fraudulent joinder, it has not provided any evidence to meet its stringent burden of proof. A defendant asserting fraudulent joinder must prove that "either (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997), citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989). A defendant pleading fraudulent joinder must support the claim with "clear and convincing evidence." Woods v. Firestone Tire & Rubber Co., 560 F.Supp. 588, 590 (D. Fla. 1983). If there is even a possibility that a state court would find that the complaint states a cause of action against the resident defendant, the case must be remanded. Crowe, 113 F.3d at 1538, quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983). Volkswagen cannot meet its burden of proof. 2. Volkswagen has failed to prove that any equitable exception would apply to the one-year rule in this case.

Although Volkswagen has alleged that it is entitled to an "equitable exception,3 it has provided no authority for granting any such exception to the mandatory and absolute one-year deadline for removal. Although the Fifth Circuit has recognized an equitable exception to the statutory time limit, the Third Circuit has not. See Tedford v. Warner-Lambert, 327 F.3d 423, 425-26 (5th Cir.2003) ("No ... circuit court [other than the Fifth] has published an opinion on this issue, and district courts across the country have come to opposite conclusions."); see also Wilbanks v. N. Am. Coal Corp., 334 F.Supp.2d 921, 926-27 (S.D.Miss.2004). In fact, the Fifth

3

Volkswagen's Notice of Removal at 4, n.1. 11

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Circuit is the only circuit that has clearly recognized an equitable exception to the § 1446 one-year time limit for removal of diversity jurisdiction cases. Tedford, 327 F.3d at 428-29. In contrast, the Third Circuit strictly construes removal statutes and places the burden on defendants to demonstrate that removal is proper. In re Briscoe, 448 F.3d 201, 217 (3rd Cir. 2006); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3rd Cir. 1995). The Third Circuit has not recognized an exception, the statute does not contain an exception, and the Third Circuit narrowly construes removal statutes against removal. As such, this Court should not recognize an exception to the clear statutory language of § 1446(b). V. CONCLUSION Volkswagen failed to timely remove this case to federal court. This case should be remanded to state court without further delay.

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Respectfully submitted, WEISS & SAVILLE, P.A. 1220 North Market Street, Suite 604 P.O. Box 370 Wilmington, DE 19899 Phone: 302/656-0400 Fax: 302/656-5011 By: /s/ Yvonne Takvorian Saville Yvonne Takvorian Saville, #3430

~ and ~ BARON & BUDD, P.C. The Centrum, Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 Phone: 214/521-3605 Fax: 214/520-1181 Attorneys for Plaintiffs Date: April 12, 2007

CERTIFICATE OF CONFERENCE The undersigned certifies that counsel for Plaintiff has conferred with Defendant's counsel in a good faith attempt to resolve the matter without court intervention. This motion is opposed. /s/ Yvonne Takvorian Saville Yvonne Takvorian Saville, #3430

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARY M. COLLINS, Individually and as Personal Representative of the Heirs and Estate of JAMES DANIEL COLLINS, Deceased, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY; ET AL., Defendants. : : : : : : : : : : : : : Case No. 07-CV-149

(Removed on March 14, 2007, from the Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 06C-02281-ASB)

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

On the _____ day of ___________________, 2007, came before the Court Plaintiff's Motion to Remand filed by Plaintiff, MARY M. COLLINS, acting Individually and as Personal Representative of the Heirs of the ESTATE OF JAMES DANIEL COLLINS, Deceased; the motion seeks remand of this action to the state court from which it was removed by Defendant Volkswagen of America, Inc. The Court has been advised of argument of the parties, and finds that Defendant Volkswagen of America, Inc. failed to remove this case in a timely manner, as required under 28 U.S.C. § 1446(b). This case is therefore remanded to the state court from which it was removed pursuant to 28 U.S.C. § 1447(c). SIGNED on the _____ day of _____________________, 2007.

HONORABLE JUDGE PRESIDING

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND -Solo Page