BRADLEY P. GARBER, Plaintiff,
BOSCH REXROTH CORPORATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court upon Plaintiff's Motion to Remand. [D.E. 6]. Defendants have filed their Response [D.E. 9], and Plaintiff filed a Reply. [D.E. 10]. This matter being fully briefed, and the Court being otherwise sufficiently advised, it is now ripe for review.
I. Procedural Background
Plaintiff filed suit against Defendants on October 26, 2012 in Fayette Circuit Court alleging disability discrimination in violation of Kentucky law, failure to accommodate in violation of Kentucky law, wrongful use of administrative and/or civil proceedings, retaliation in violation of Kentucky law, outrage and intentional infliction of emotional distress, and punitive damages. [D.E. 1-1]. Plaintiff filed an amended complaint in Fayette Circuit Court on August 1, 2013 adding additional claims of retaliation, wrongful discharge, violation of KRS 337.385, conversion, and breach of contract. The Defendants removed the action to this Court on August 22, 2013, claiming this Court has subject-matter jurisdiction over Plaintiffs claims based on 28 U.S.C. § 1331 and 28 U.S.C. § 1332. Defendants ask the Court to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over all other claims. Plaintiff filed a timely Motion to Remand. [D.E. 6].
II. Standard of Review
"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441. "The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant through service or otherwise." Id. § 1446(b)(1). "If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id. § 1446(b)(3).
Defendants assert that the case is removable because the Court has original jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1332. Defendants contend the Court has jurisdiction under § 1332 because Defendants Dan Reynolds and Geoff O'Nan were fraudulently joined to prevent diversity. To support this claim, Defendants aver that "Counts I and II of the Original Complaint cannot be asserted or maintained against individual defendants." [D.E. 1 at 4]. Thus, because the claims appeared in the original complaint, Defendants were on notice of the possibility of fraudulent joinder from the initial pleading filed on October 26, 2012. Plaintiff contends, and Defendants do not dispute, that on July 3, 2013 the Defendants were served with interrogatories that made it clear Plaintiff was seeking damages in excess of $75, 000, a jurisdictional requirement of § 1332. Therefore, on July 3, 2013, at the very latest, the Defendants had "solid and unambiguous information" of complete diversity of citizenship and of the amount-in-controversy such that the thirty-day period to file a notice of removal based on diversity jurisdiction began to run. 28 U.S.C. § 1332; Lindon v. Kakavand, No. 5:13-cv-26-DCR, 2013 WL 5441981, at *3 (E.D. Ky. Sept. 27, 2013) (quoting Walker v. Phillip Morris USA, Inc., 443 F.Appx. 946, 950 (6th Cir. 2011)); 28 U.S.C. § 1446(b)(3) ("If the case is stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant... of a copy of... other paper from which it may first be ascertained that the case is one which is or has become removable.").
Under § 1446(b)(3), Defendants had 30 days from July 3, 2013, or until August 2, 2013, in which to file a notice of removal based on diversity jurisdiction. Defendants did not file a notice of removal in this action until August 22, 2013. Therefore, the Court will not address the merits of Defendants claim of fraudulent joinder because it is an untimely argument. See Whiteley v. Wolverine Harley-Davidson, Inc., No. 2:10-cv-12410, 2010 WL 3564262, at *2 (E.D. Mich. Sept. 9, 2010) ("[E]ven if the defendants can establish a case for fraudulent joinder, they are time-barred from removing this action under 28 U.S.C. § 1446(b) because the alleged issues with Wolverine's joinder were equally apparent in the original complaint, filed more than thirty days before the removal.").
However, Defendants also submit that the case is removable based upon 28 U.S.C. § 1331, which only became apparent upon Plaintiff filing an amended complaint on August 1, 2013. Thus, the question becomes whether Defendants may remove based on federal question jurisdiction after they have waived their right to remove based upon diversity jurisdiction. "[T]he plain language of the statute does not permit removal, even on an entirely new basis, if the initially removable case was not timely removed." Clegg v. Bristol-Myers Squibb Co., 285 B.R. 23, 29 (M.D. Fla. 2002) (citations omitted). "The courts, however, have read into the statute an exception for the case where the plaintiff files an amended complaint that so changes the nature of his action as to constitute substantially a new suit begun that day." Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n, 668 F.2d 962, 965 (7th Cir. 1982) (citations omitted) (internal quotation marks omitted); see also Johnson v. Heublein Inc., 227 F.3d 236, 242 (5th Cir. 2000) (citations omitted) (internal quotation marks omitted) ("[A]lthough a defendant has submitted himself to state court jurisdiction on one cause of action, this does not prevent his removing the cause when an entirely new and different cause of action is filed in the same case.").
Defendants may take advantage of the so-called "revival exception" because Plaintiff asserted entirely new causes of action in his amended complaint. Thus, on August 1, 2013, the day the amended complaint was filed by Plaintiff, the 30-day window for filing a notice of removal began anew. Plaintiff's original complaint stated causes of action for disability discrimination, failure to accommodate, wrongful use of administrative proceedings, retaliation, intentional infliction of emotional distress, and punitive damages. In the amended complaint, Plaintiff added claims for wrongful discharge, a violation of Kentucky statute for wrongfully withholding payment, conversion, and breach of contract. As the causes of action appearing in the original complaint and the causes of action appearing in the amended complaint rely on entirely different facts, the new causes of action asserted by Plaintiff "constitute substantially a new suit." Wilson, 668 F.2d at 965.
It first became apparent that the case was removable based upon federal question jurisdiction when Plaintiff filed his amended complaint on August 1, 2013. Defendants filed their notice of removal on August 22, 2013. When applying the revival exception, Defendants filed a timely notice of removal and the Court must determine whether Plaintiff's amended complaint creates federal question jurisdiction. See 28 U.S.C. § 1446(b).
Plaintiff contends the issue of federal question jurisdiction is moot because of a settlement that occurred after the notice of removal. [D.E. 6 at 4]. However, "[i]t has long been the case that the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Grupo Dataflux v. Atlas Global Grp., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 22 U.S. 537 (1824)). This action was removed on August 22, 2013. [D.E. 1]. The affidavit provided by Plaintiff was not sworn until September 19, 2013. [D.E. 6-4]. Thus, the Court must determine whether federal question jurisdiction existed at the time the case was removed.
The Court does not have federal question jurisdiction based on complete preemption by § 301 of the Labor Management Relations Act. See 29 U.S.C. § 185. "The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. ...