United States District Court, W.D. Kentucky
ACR DEALER FUNDING, L.L.C. PLAINTIFF
AUTO BROKERS USA CORP., a Florida Corporation, ASHLEY A. TALAVERA, ADELFO GIZ, and RIGOBERTO IVAN PEREZ DEFENDANT
Charles R. Simpson III, Senior Judge United States District
matter is before the Court on the motion of Plaintiff ACR
Dealer Funding, L.L.C. (“Plaintiff”) to remand
the case to the Hardin County, Kentucky Circuit Court, ECF
No. 5. Defendants Auto Brokers USA Corp., Ashley A. Talavera,
and Adelpho Giz (collectively, “Defendants”)
responded, ECF No. 6. Plaintiff replied, ECF No. 7. For the
reasons explained below, the Court will grant Plaintiff's
motion to remand the case to the state court.
filed its original complaint against Defendants in the Hardin
County Circuit Court on August 26, 2016. Compl. 1, ECF No.
5-1. The body of the original complaint identified Plaintiff
as “ACR Dealer Funding, L.L.C.” Id. at
2. But the caption of the original complaint identified
Plaintiff as “ACR of South Florida, L.L.C.”
Id. at 1. On January 18, 2017, Plaintiff filed an
amended complaint in the Hardin County Circuit Court. Am.
Compl. 1, ECF No. 5-2. In relevant part, the amended
complaint changed the identification of Plaintiff in the
caption to “ACR Dealer Funding, L.L.C.”
Id. Soon after Plaintiff's filing of the amended
complaint in the state court, on February 10, 2017,
Defendants filed a notice to remove the case to this Court
under 28 U.S.C. §§ 1332, 1441, and 1446. Not.
Removal 1-2, ECF No. 1.
now seeks to remand the case to the Hardin County Circuit
Court. Mot. Remand 1, ECF No. 5. Plaintiff argues that
Defendants' notice of removal was untimely because it was
filed more than thirty days after they had been served with
the original complaint. Id. at 3-4. Defendants,
however, appear to invoke the “revival exception”
to the thirty day window: they maintain that their notice of
removal was timely because the time to remove began anew when
the amended complaint-which identified “ACR Dealer
Funding, L.L.C.” as the plaintiff-was filed. Resp. Opp.
Mot. Remand 2-6, ECF No. 6. Defendants explain that
“[t]he substitution of an entirely new plaintiff in the
Amended Complaint was tantamount to a brand new action being
brought by a brand new plaintiff.” Id. at 4.
general, a notice of removal must be served within thirty
days after the initial pleading is served on or received by
the defendant. 28 U.S.C. § 1446(b)(1). If a case is not
initially removable, a notice of removal may be filed within
thirty days after the defendant receives a copy of an amended
pleading, motion, order, or paper from which it can be
determined that the case has become removable. Id.
§ 1446(b)(3). The United States Court of Appeals for the
Sixth Circuit has held that the “strict time
requirement for removal in civil cases is not jurisdictional;
rather, it is a strictly applied rule of procedure and
untimeliness is a ground for remand so long as the timeliness
has not been waived.” Seaton v. Jabe, 992 F.2d
79, 81 (6th Cir. 1993) (citations omitted). This thirty day
rule has two purposes:
On the one hand it forecloses a defendant from adopting a
“wait and see” approach in the state court;
specifically, it prevents a second bite at the jurisdictional
apple if a defendant (belatedly) perceives that the case is
proceeding other than to his liking . . . On the second hand,
the statutory requirement minimizes the delay and waste of
resources involved in starting a case over in federal court
after substantial proceedings have taken place in state
Brown v. N.J. Mfrs. Ins. Group, 322 F.Supp.2d 947,
950 (M.D. Tenn. 2004) (citing Nasco, Inc. v.
Norsworthy, 785 F.Supp. 707, 710 (M.D. Tenn. 1992)).
the “revival exception” to § 1446(b)(1),
which the Sixth Circuit has yet to adopt, a party's right
to remove may be revived after thirty days, even if the case
was originally removable, if 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, 668 F.2d 962, 965 (7th Cir. 1982), cert.
denied, 459 U.S. 831 (1982) (quoting Fletcher v.
Hamlet, 116 U.S. 408, 410 (1886)).
case, Defendants were untimely in removing the case to this
Court. Plaintiff filed its original complaint on August 26,
2016. Compl. 1, ECF No. 5-1. Given the allegations in the
original complaint, the case was initially removable under
diversity jurisdiction. See id. ¶¶ 1-8,
27, 32, 38, 44, 48, 53, 54, ECF No. 5-1 (listing citizenship
of parties and damages); 28 U.S.C. § 1332 (listing
requirements for diversity jurisdiction). Although the case
was initially removable, Defendants waited more than thirty
days after the filing of the original complaint, until
February 10, 2017, to remove the case to this Court. Not.
Removal 1, ECF No. 1. Plaintiff's filing of an amended
complaint on January 28, 2017 did not change the untimely
status of Defendants' notice of removal. Because the case
was initially removable, Plaintiff's amended complaint
was not an amended pleading, motion, order, or paper from
which it could be determined that the case had suddenly
become removable under 28 U.S.C. § 1446(b)(3).
arguendo that the “revival exception” to §
1446(b)(1) applies in the Sixth Circuit, the change in the
plaintiff's name on the caption of the case did not
affect the nature of the action such that a substantially new
suit began. Therefore, Defendants' arguments against
remanding the case to state court are unavailing, ...