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Pennsylvania Lumbermens Mutual Insurance Co. v. Sentry Select Insurance Co.

United States District Court, Fifth Circuit

December 13, 2013

PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY, Plaintiff,
v.
SENTRY SELECT INSURANCE COMPANY, ET AL., Defendants.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Came on for consideration the motion to remand filed in the above action by plaintiff, Pennsylvania Lumbermens Mutual Insurance Company.[1] Defendant Sentry Select Insurance Company[2] ("Sentry") filed a response, and plaintiff filed a reply. Having considered the parties' filings, the record in this case, and the applicable legal authorities, the court concludes that the motion to remand should be denied, and that plaintiff should file an amended complaint, consistent with this order.

I.

Background

Plaintiff initiated this action by filing its original petition for declaratory judgment in the District Court of Parker County, Texas, 43rd Judicial District. Sentry filed its notice of removal on September 12, 2013, invoking the court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. Because of a concern that Sentry had failed adequately to establish the required amount in controversy, the court on September 16, 2013, ordered Sentry to file an amended notice of removal that set forth with specificity the basis of its assertion that the amount in controversy exceeded $75, 000.00, exclusive of interests and costs. Sentry timely complied with the court's order, filing its amended notice of removal on September 27, 2013.

II.

Motion to Remand and Response

Plaintiff filed its motion to remand on October 24, 2013. The basis of the motion is that 28 U.S.C. § 1441(a) & (b) foreclosed removal of this action because all of the defendants other than Sentry are citizens of Texas. In response, Sentry argued that plaintiff's motion to remand was untimely because it was not filed within thirty days of Sentry's notice of removal.

III.

Applicable Law and Application of Law to Facts

The removal statute, 28 U.S.C. § 1441, provides that a civil action removable solely on the basis of diversity jurisdiction "may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2). This provision is commonly referred to as the "forum-defendant rule." Also pertinent here, the statute requires that any "motion to remand... 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." 28 U.S.C. § 1447(c). The Fifth Circuit has concluded that improper removal under § 1441(b)(2) is a "defect other than lack of subject matter jurisdiction" that is waived if not raised by a motion to remand filed within thirty days of the notice of removal. In re Shell Oil Co. , 932 F.2d 1518, 1523 (5th Cir. 1991).

There is no question that the motion to remand was not filed within thirty days of the date Sentry filed its notice of removal. Plaintiff argues, however, that its motion to remand is timely because it was filed within thirty days of the date defendant filed its amended notice of removal. Plaintiff claims this was in deference to the court's order for Sentry to file an amended notice of removal. The Fifth Circuit is clear that a motion to remand based on the forum-defendant rule is non-jurisdictional and is waived if not filed within thirty days of the date of the notice of removal. Plaintiff has cited no authority where the thirty-day period begins to run from an amended, rather than original, notice of removal. Absent such authority, the court must rely on the language of § 1447(c) and Fifth Circuit precedent.[3] Accordingly, the motion to remand is denied.

IV.

Plaintiff Must File An ...


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