United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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
Response to Request for Disclosure, Exh. H to Motion, p. 3.
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.
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
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