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Jackson v. Alsco, Inc.

United States District Court, S.D. Texas, Houston Division

May 24, 2019

MALLORY JACKSON, Plaintiff,
v.
ALSCO, INC., Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         This case is before the Court on the Motion to Remand (“Motion”) [Doc. # 6] filed by Plaintiff Mallory Jackson, to which Defendant Alsco, Inc. (“Alsco”) filed a Response [Doc. # 8]. Having reviewed the full record and applicable legal authorities, the Court finds that the Notice of Removal was untimely pursuant to 28 U.S.C. § 1446(c)(1). On that basis, the Court grants the Motion to Remand.

         I. BACKGROUND

         Plaintiff worked for Defendant as a Route Service Representative. Plaintiff alleges that in January 2016, he suffered a serious knee injury when he slipped and fell at work. Plaintiff's employer was a nonsubscriber to the Texas Workers' Compensation Insurance System.

         Plaintiff filed the Original Petition in Texas state court on January 7, 2017, naming “Admiral Linen and Uniform Service, Inc. by Alsco” as the Defendant. See Original Petition, Exh. A to Motion. On November 29, 2017, Plaintiff filed his First Amended Petition, changing the name of the Defendant to “Admiral Linen and Uniform Service, Inc.” (“Admiral Linen”). See First Amended Petition, Exh. B to Motion. In both the Original Petition and the First Amended Petition, there was only a single defendant.

         On December 18, 2017, Defendant sent Plaintiff's counsel a copy of the Motion to Abate and to Compel Arbitration (“Motion to Abate”) filed in the state court lawsuit by Admiral Linen. See Motion to Abate, Exh. C to Motion. The state court judge denied the Motion to Abate on March 27, 2018. See Order, Exh. D to Motion.

         On August 20, 2018, Admiral Linen served its Response to Plaintiff's Request for Disclosure in the state court lawsuit. The first request was for the correct name of the parties in the lawsuit, to which Admiral Linen answered “The parties have been correctly named.” See Response to Request for Disclosure, Exh. E to Motion, p. 3.

         On December 5, 2018, Admiral Linen filed a First Amended Answer, stating that “Plaintiff has sued the wrong entity” because Admiral Linen had been acquired by Alsco in April 2015. See First Amended Answer, Exh. G to Motion. That same day, Admiral Linen filed an Amended Response to Plaintiff's Request for Disclosure, stating:

Admiral Linen & Uniform Service, Inc. is not the proper party. In April 2015, ALSCO, Inc. purchased Admiral Linen & Uniform Service, Inc., and at all pertinent times ALSCO, Inc. was the employer of the Plaintiff Mallory Jackson.

         Amended Response to Request for Disclosure, Exh. H to Motion, p. 3.

         On March 5, 2019, counsel for the parties entered into an agreement for Plaintiff to substitute Alsco for Admiral Linen as the Defendant in the state court lawsuit. See Letter Agreement, Exh. I to Motion. In return, Defendant's counsel agreed to accept service on Alsco's behalf, and agreed “not to raise the defense of statute of limitations and agree[d] that the amended petition relates back to the date of original filing.” See Id. (emphasis added). On March 18, 2019, Plaintiff filed the Second Amended Petition, naming Alsco, Inc. as the Defendant. See Second Amended Petition, Exh. J to Motion. On March 25, 2019, Alsco filed its Notice of Removal.

         On April 19, 2019, within thirty days after the Notice of Removal was filed, Plaintiff filed his Motion to Remand. Plaintiff argues that the removal was untimely and, therefore, the case should be remanded to state court. The Motion to Remand has been briefed and is now ripe for decision.

         II. ANALYSIS

         Where, as here, removal is based on diversity of citizenship, the case may not be removed “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 ...


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