The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CARLISLE CREEK, LLC et al., }
}
Plaintiffs, }
}
v. } Case No.: 4:24-cv-01736-RDP
}
NATIONWIDE PROPERTY & }
CASUALTY INSURANCE CO. et al., }
}
Defendants. }
MEMORANDUM OPINION
This matter is before the court on Plaintiffs’ Motion to Remand. (Doc. # 3). The Motion
has been briefed and is ripe for review. (Docs. # 3, 4). For the reasons discussed below, the Motion
(Doc. # 3) is due to be granted.
I. Background
On June 7, 2022, Plaintiffs Carlisle Creek, LLC, Ross Hudak, and Tim Hudak filed this
case against Defendant Nationwide Property and Casualty Insurance Company (“Nationwide
Property”) and various fictious defendants in the Circuit Court of Etowah County, Alabama. (Doc.
# 1-1 at 30-32). Plaintiffs asserted a breach of contract claim against Nationwide Property. (Id.).
Plaintiffs allege that after their building was damaged by hail in March 2018, they made a claim
for benefits under their insurance policy with Nationwide Property and Nationwide Property
refused to pay the claim. (Id.).
The case progressed in state court for the next two years as the parties took depositions,
exchanged written discovery, and engaged in mediation. (Doc. # 3 at 2 ¶¶ 5, 9). One of the
depositions that was taken was of Nikki Haak, who was the claims adjuster for this matter. (Id. at
5 ¶ 7).
On June 12, 2024, Plaintiffs filed an Amendment to Complaint adding Tiforp, LLC as an
additional Plaintiff. (Doc. # 4-2). On November 18, 2024, Plaintiffs filed a second Amendment to
Complaint, substituting Nationwide General Insurance Company (“Nationwide General”) as a
Defendant in place of the previously designated fictious parties. (Doc. # 4-3). Plaintiffs also added
claims seeking declaratory relief and reformation of contract. (Id.).
On November 27, 2024, Nationwide Property filed a Motion to Dismiss or for Summary
Judgment in state court. (Docs. # 3 ¶ 14; 4-5). On December 10 and 12, 2024, Nationwide Property
participated in several depositions. (Doc. # 3 ¶ 14).
On December 16, 2024, Nationwide Property filed a Notice of Removal with this court
based on diversity jurisdiction under 28 U.S.C. § 1332. (Doc. # 1). In its Notice of Removal,
Nationwide Property asserts that the parties in this case are completely diverse and the amount in
controversy exceeds $75,000. (Id.). Nationwide Property also stated the following in its notice:
“The undersigned attorneys represent both Defendants and Nationwide Property and Casualty
Insurance Company hereby gives notice of its consent to removal by Nationwide General
Insurance Company.” (Id. ¶ 19).
Regarding diversity of citizenship, Nationwide Property contends that both Nationwide
Property and Nationwide General are citizens of the state of Ohio. (Id. ¶¶ 3-4). And, Nationwide
Property asserts that each Plaintiff is a citizen of Alabama. (Id. ¶¶ 5-10). Based on each parties’
citizenship, Nationwide Property contends that Plaintiffs are citizens of Alabama and Defendants
are citizens of Ohio; therefore, complete diversity of citizenship exists.
Turning to the amount in controversy, although Plaintiffs do not state the amount they
demand in damages in their Complaint or amendments to the Complaint, Nationwide Property
asserts that “other evidence shows that the Plaintiffs seek more than $75,000.” (Id. ¶ 13).
Nationwide Property points to Plaintiffs’ interrogatories where they answered that the amount of
damages they claimed was the “estimates provided by Steven Ward are owed plus interest at the
legal interest rate from the date of the incident through the date of payment.” (Id. ¶ 14 (citing Doc.
# 1-1 at 18)). The report of Steven Ward states that the cost would be $240,000.00. (Id. (citing
Doc. # 1-1 at 23-29)). Because $240,000.00 exceeds $75,000, Nationwide Property contends that
the amount in controversy is satisfied. (Id. ¶ 15).
On January 14, 2025, Plaintiffs filed a Motion to Remand the case back to the Circuit Court
of Etowah County, Alabama. (Doc. # 3).
II. Legal Standard
Federal courts are courts of limited rather than general jurisdiction. Aldinger v. Howard,
427 U.S. 1, 15 (1976). Accordingly, if either the parties or the court itself questions the existence
of federal subject matter jurisdiction at any point in the proceedings, the court has a constitutional
responsibility to ensure that federal jurisdiction exists before it takes up any other issues presented
by the parties. Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1400-01 (11th Cir.
2000).
Where a case is removed from state court to federal court, “[t]he moving party bears the
burden of proof regarding the existence of federal subject matter jurisdiction.” City of Vestavia
Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 n.1 (11th Cir. 2012); Dudley v. Eli Lilly & Co.,
778 F.3d 909, 913 (11th Cir. 2014). And, in the context of a motion to remand, the party opposing
remand has the burden of establishing that removal was proper. See Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998). “Because removal jurisdiction raises significant
federalism concerns, federal courts are directed to construe removal statutes strictly” so that “all
doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala. v.
Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); see also Newman v. Spectrum Stores, Inc.,
109 F. Supp. 2d 1342, 1345 (M.D. Ala. 2000) (citation omitted) (“Because federal court
jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal
jurisdiction is not absolutely clear.”).
A party who removes a case to federal court must also comply with statutory procedural
requirements. Under 28 U.S.C. § 1446(a)-(b)(1), the removing party must file a notice of removal
with the “district court of the United States . . . within 30 days” of the date it receives service of
the complaint. But unlike the requirement that federal jurisdiction must exist for effective removal,
litigants may waive procedural requirements, including the requirement that the removing party
file its notice of removal with the district court within thirty days of service. Wilson v. Gen. Motors
Corp., 888 F.2d 779, 781 n.1 (11th Cir. 1989) (citing Grubbs v. Gen. Elec. Credit Corp., 405 U.S.
699, 702 (1972)).
III. Discussion
Plaintiffs have moved to remand this case on several grounds. (Doc. # 3). First, Plaintiffs
argue that Nationwide Property’s removal was untimely. (Id. at 4-5). Second, Plaintiffs argue that
“no new Defendant was added to invoke a new time limit to remove” because both Nationwide
Property and Nationwide General have “participated in pre-suit negotiations in the more than two
year defense of this action.” (Id. at 5). Third, Plaintiffs assert that Nationwide Property has waived
the ability to remove because it “has actively litigated this matter for over two years.” (Id.). Finally,
Plaintiffs contend that Nationwide Property has not established diversity of citizenship. (Id. at 6).
Because diversity of citizenship is the key to even asserting federal subject matter jurisdiction in
this case, the court addresses that argument first before considering Plaintiffs’ other arguments.
A. Diversity of Citizenship
In its Motion to Remand, Plaintiffs argue that Nationwide Property has not established
diversity of citizenship because it “has offered no evidence other than bare assertions to support
its claim of diversity.” (Doc. # 3 at 6 ¶ 10). The court disagrees.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action from state court to
federal district court if the district court would have had original subject matter jurisdiction. When
an action is removed from state court, a federal district court must first determine whether it has
original jurisdiction. Univ. of S. Ala., 168 F.3d at 410. The district court must remand the case if it
appears that jurisdiction is lacking. 28 U.S.C. § 1447(c). A removing party bears the burden of
demonstrating the existence of original federal subject matter jurisdiction and that removal is
otherwise proper. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
Original federal subject matter jurisdiction includes diversity jurisdiction. PTA-FLA, Inc.
v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016). This is the jurisdictional basis on which
Nationwide Property removed this action from the Circuit Court of Etowah County, Alabama.
(Doc. # 1). A district court has diversity jurisdiction when the action is between citizens of different
states and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. §
1332(a)(1). Diversity jurisdiction requires complete diversity; that is, every plaintiff must be
completely diverse in citizenship from every defendant. Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998); Flintlock Const. Servs., LLC v. Well-Come Holdings, LLC, 710
F.3d 1221, 1224 (11th Cir. 2013).
For purposes of determining diversity jurisdiction, a natural person is a citizen of the state
where he or she is domiciled. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). The
Eleventh Circuit has noted that “[c]itizenship, not residence, is the key fact that must be alleged in
the complaint to establish diversity for a natural person.” Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994); see also Keshock v. Metabowerke GMBH, 2015 WL 4458858, at *2 (S.D. Ala.
July 21, 2015) (collecting Eleventh Circuit cases). In its Notice of Removal, Nationwide Property
sufficiently alleges that Plaintiffs Ross Hudak and Tim Hudak are citizens of Etowah County and
therefore, are citizens of Alabama. (Doc. # 1 ¶¶ 8-9).
A limited liability company (“LLC”) is a citizen of each state of which any of its members
are citizens. Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022
(11th Cir. 2004). To sufficiently allege the citizenship of an LLC, the party invoking diversity
jurisdiction must identify the citizenship of each member. Id. In its Notice of Removal, Nationwide
Property states that Ross Hudak testified that he is the sole owner of Carlisle Creek Partners, LLC
(also referred to as Carlisle Creek, LLC) and Tiforp Investments, LLC (also referred to as Tiforp,
LLC). (Doc. # 1 ¶ 8). Nationwide Property also attached information from the Alabama Secretary
of State, which shows that Carlisle Creek Partners, LLC is an Alabama LLC formed in 1996 by
Ross Hudak (id. ¶ 5 (citing Doc. # 1-1 at 7-9)), and Tiforp Investments, LLC is an Alabama LLC
formed in 2012 by Ross Hudak. (Id. ¶ 6 (citing Doc. # 1-1 at 10-11)). Based on Nationwide
Property’s allegations and support, the court finds that Nationwide Property has established that
Carlisle Creek, LLC and Tiforp, LLC are citizens of Alabama.
Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen of every
State and foreign State by which it has been incorporated and the State or foreign state where it
has its principal place of business . . . .” In its Notice of Removal, Nationwide Property alleges
that both Nationwide Property and Nationwide General are citizens of Ohio because both
Defendants were incorporated in Ohio and have their principal place of business in Columbus,
Ohio. (Doc. # 1 ¶ 3). In support of its allegations, Nationwide Property attached information from
both the Ohio Secretary of State and Alabama Secretary of State. (Doc. # 1-1 at 1-6). The court
finds that Nationwide Property has established that both it and Nationwide General are citizens of
Ohio and that all Plaintiffs are citizens of Alabama. Accordingly, Nationwide Property has met its
burden demonstrating that complete diversity exists between the parties.
Pursuant to 28 U.S.C. § 1332, in addition to diversity of citizenship, the amount in
controversy must exceed $75,000. But here, Plaintiffs do not contest that Nationwide Property has
met its burden alleging the requisite amount in controversy. Therefore, based on Nationwide
Property’s Notice of Removal, the court finds that the amount in controversy is satisfied. Because
Nationwide Property has established both complete diversity and the amount in controversy
requirement, the court has federal subject matter jurisdiction to hear this case. As far as removal
goes – so far, so good.
B. Addition of a New Defendant
Plaintiffs also contend that “the amendment did not add a new party” as “[b]oth Nationwide
defendants have participated in pre-suit negotiations [in and during] the more than two year
defense of this action.” (Doc. # 3 at 5 ¶ 7). In support of their argument, Plaintiffs point to
Nationwide’s website which “identifies both defendants as affiliates of Nationwide.” (Id. (citing
id. at 26-28). Plaintiffs also direct the court to their interactions with a corporate representative,
Nicki Haak, who they allege communicated with Plaintiffs on behalf of Nationwide General before
Nationwide General was added as a Defendant to the case. (Id. at 2 ¶¶ 7-8; 5 ¶ 7). Plaintiffs further
allege that Haak was deposed as the claims adjuster for this matter and that her “communications
indicate she adjusted the claim on behalf of both defendants.” (Id. at 5 ¶ 7). Additionally, Plaintiffs
allege that “[d]efense counsel identified Ms. Haak as [an] employee of Nationwide General
Insurance on its witness list.” (Id.). For all of these reasons, Plaintiffs contend that “no new
defendant was added to invoke a new time limit to remove.” (Id.). The court finds Plaintiffs’
argument without merit.
Judge Corey L. Maze ruled on a similar issue in Patterson v. Haier US Appliance Sols.
Inc., 2021 WL 50758 (N.D. Ala. Jan. 6, 2021). In Patterson, the plaintiffs sued General Electric
Company in state court, but Haier US Appliance Solutions, Inc., d/b/a as GE Appliances (“Haier”)
answered the complaint, instead of General Electric Company. Id. at *1. The plaintiffs then
amended their complaint to name Haier as Defendant. Id. Haier then filed a notice of removal to
federal court twenty-five days later. Id. The plaintiffs subsequently moved to remand “arguing that
Haier’s 30-day window to remove opened months earlier when Haier got a copy of the complaint
against General Electric.” Id. Judge Maze ultimately ruled that Haier’s notice of removal was
timely because “the removal statutes only allow ‘the defendant’ to file removal notices, see 28
U.S.C. §§ 1441, 1446(b), and Haier was not the defendant until [the plaintiffs] amended [their]
complaint.” Id. Judge Maze relied on the Supreme Court’s ruling in Murphy Bros. v. Michetti Pipe
Stringing, 526 U.S. 344 (1999). In Murphy, the Court concluded that “[i]n the absence of service
of process (or waiver of service by the defendant), a court ordinarily may not exercise power over
a party the complaint names as a defendant.” Id. at 350. Judge Maze summarized Murphy: “In
short, Murphy holds that § 1446(b)(1)’s 30-day clock does not begin to run until there is formal
service of the summons or waiver of formal service.” Patterson, 2021 WL 50758, at *7.
Here, just as Haier was not a party in Judge Maze’s case until it was actually added as a
defendant by amendment, Nationwide General was not a Defendant in this case until it was added
as a party by Plaintiffs’ Amendment to Complaint. Plaintiffs’ Amendment to Complaint, which
added Nationwide General as a Defendant, was filed on November 18, 2024 (Doc. # 4-3) – over
two years after the initial Complaint was filed against Nationwide Property and the various fictious
defendants. (See Doc. # 4-1). Although Plaintiffs allege that Nationwide General participated in
the litigation through the actions of Haak before being named as a Defendant, these alleged actions
do not mean that Nationwide General was a party-defendant. See Patterson, 2021 WL 50758, at
*5 (holding that Haier “could not unilaterally make itself the defendant” by filing an answer to the
complaint before it was named a defendant). Further, there is no evidence that Nationwide General
was served with the complaint before it was added as a Defendant on November 18, 2024.
And, to the extent that Plaintiffs allege that Nationwide Property and Nationwide General
are the same because “Nationwide’s web site identifies both defendants as affiliates of
Nationwide,” this assertion is not supported by the record. (Doc. # 3 at 5 ¶ 7). As Defendants argue
in their Objection to Motion to Remand, Nationwide Property and Nationwide General are separate
legal entities: Nationwide Property was formed in 1979 while Nationwide General was formed in
1957. (Doc. # 4 (citing Doc. # 1-1 at 4-6)). Despite Plaintiffs’ arguments in their Motion to
Remand, Plaintiffs’ own Amendment to Complaint indicates that Plaintiffs believe that
Nationwide Property and Nationwide General are distinct entities. Plaintiffs’ Amendment to
Complaint substituted Nationwide General for the various fictious defendants – not Nationwide
Property. (Doc. # 4-3). This demonstrates that Plaintiffs themselves believe Nationwide General
and Nationwide Property to be two distinct entities as they added Nationwide General as a
Defendant alongside Nationwide Property.
For all of these reasons, the court finds that Plaintiffs’ Amendment to Complaint added
Nationwide General as a new party. As a newly added Defendant, Nationwide General had the
ability to file a notice of removal. But, as discussed below, that is not what occurred here.
C. Waiver of the Ability to Remove
Plaintiffs argue that Nationwide Property has waived its ability to remove the case because
it “has actively litigated this matter for over two years.” (Doc. # 3 at 5). Plaintiffs point to the
Eleventh Circuit’s decision in Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, 365 F.3d 1244
(11th Cir. 2004) (per curiam) to support their argument. In Yusefzadeh, the Eleventh Circuit
considered whether a defendant had waived his right to remove a state court action to federal court
because he filed two motions to dismiss before filing a notice of removal. Id. at 1245. The court
evaluated waiver of removal:
Once a state court defendant has exercised his right to seek removal under 28 U.S.C.
§ 1446(a) a state court plaintiff may seek remand within thirty days after the filing
of the notice of removal noting any defect with the removal. 28 U.S.C. § 1447(c).
One such defect, commonly referred to as litigating on the merits, effectively
waives the defendant’s right to remove a state court action to the federal court.
“A state court defendant may lose or waive the right to remove a case to a federal
court by taking some substantial offensive or defensive action in the state court
action indicating a willingness to litigate in that tribunal before filing a notice of
removal with the federal court . . . [w]aiver will not occur, however, when the
defendant’s participation in the state action has not been substantial or was dictated
by the rules of that court . . . .”
Charles A. Wright et al. 14B Federal Practice & Procedure § 3721 (2003). Whether
the state court defendant had waived his right to remove based on “active
participation must be made on a case-by-case basis.” Hill v. State Farm Mut. Auto.
Ins. Co., 72 F. Supp. 2d 1353, 1354 (M.D. Fla. 1999).
Id. at 1246.
Ultimately, the Eleventh Circuit concluded that the defendant in that case had not waived
the right to removal. Id. at 1247. In support of its conclusion, the court considered Florida’s
procedural requirement requiring a state court defendant to file responsive pleadings within twenty
days after receipt of the complaint and the removal statute which allows a state court defendant
thirty days to seek removal of a state court action. See Fla. R. Civ. P. 1.140(a)(1); 28 U.S.C. §
1446(b). The court concluded that “[t]his discrepancy of time periods places a state court defendant
in a quandary” when the defendant’s plan is to file a notice of removal but still must navigate the
deadline for filing a motion to dismiss in state court. Yusefzadeh, 365 F.3d at 1246. The court held
“‘[t]he filing of a motion to dismiss in and of itself does not necessarily constitute a waiver of the
defendant’s right to proceed in the federal forum.’” Id. (quoting Hill, 72 F. Supp. 2d at 1354). The
court also noted that the defendant “[had] not schedule[d] a hearing on his motions to dismiss prior
to seeking removal and the state court had not ruled on his motions to dismiss prior to his removing
the case.” Id. at 1247. For all of these reasons, the Eleventh Circuit found that the defendant had
not waived his right to removal because he had not taken “substantial offensive or defensive
actions in state court.” Id.
Here, Plaintiffs argue that “two years of discovery, including taking and defending
numerous depositions, and engaging in mediation, and filing of motions, including a motion to
dismiss or motion for summary judgment, and filing a witness list shortly before trial definitely
indicates a willingness to litigate in state court and constitutes active participation.” (Doc. # 3 at 6
¶ 9).
“The intent to waive the right to remove must be ‘clear and unequivocal.’” EHD Techs.,
LLC v. Cincinnati Indem. Co., 2018 WL 4773862, at *2 (N.D. Ala. Oct. 13, 2018) (quoting
Franklin v. City of Homewood, 2007 WL 1804411, at *5 (N.D. Ala. June 21, 2007)). As the
Eleventh Circuit held in Yusefzadeh, the determination of whether a defendant has sufficiently
litigated on the merits in state court and waived removal is made on a case-by-case basis. 365 F.3d
at 1246 (citing Hill, 72 F. Supp. 2d at 1354). Courts may consider two factors: “(1) whether the
actions taken by the Defendants in the state court were for the purpose of preserving the status
quo, or did they manifest an intent to litigate on the merits in state court and 2) whether the removal
can be characterized as an appeal from an adverse judgment of the state court.” EHD Techs., 2018
WL 4773862, at *2 (quoting Fain v. Biltmore Sec., Inc., 166 F.R.D. 39, 40-41 (M.D. Ala. 1996));
see also Franklin, 2007 WL 1804411, at *5; Tillis v. Cameron, 2007 WL 2806770, at *4 (M.D.
Ala. Sept. 25, 2007).
In their Objection to Motion to Remand, Defendants argue that Yusefzadeh supports their
position as the Eleventh Circuit held that the defendant had not waived his right to removal based
on his filing a motion to dismiss. 365 F.3d at 1246-47. If that is all Defendants had done in the
state court, they may be correct in their interpretation of Yusefzadeh. However, here, Defendants
did much more than file a motion to dismiss. Not only did Nationwide Property file a Motion to
Dismiss or for Summary Judgment (Doc. # 4-5), it also took depositions, exchanged written
discovery, and even engaged in mediation in the state court. (Doc. # 3 ¶¶ 5, 9). The court finds that
these actions indicate an “intent to ligate on the merits in state court,” especially given that they
were taken over a period of two years. Fain, 166 F.R.D. at 40-41. Therefore, Nationwide Property
waived its right to removal. Having said that, the court must also consider the interests of
Nationwide General, who was not added as a Defendant until November 18, 2024. (Doc. # 4-3).
“[T]he broader policy served by § 1446(b)(2)(C) is that a later-served defendant’s right to
remove generally should not be compromised by an earlier served defendant’s implied waiver of
its own right to remove.” Norman v. Liberty Mut. Ins. Co., 2020 WL 8575139, at *4 (N.D. Ala.
Mar. 16, 2020); see also Ala. Mun. Workers Comp. Fund, Inc. v. P.R. Diamond Prods., Inc., 234
F. Supp. 1165 (N.D. Ala. 2017) (“Consistent with the later-served rule, one defendant’s strategic
decisions should not bar another, newly served defendant from removing the case.”). Therefore,
although the court has determined that Nationwide Property (the earlier-served defendant) waived
its right to removal based on its actions over the two-year period that the case was pending in state
court, this does not preclude Nationwide General (the later-served defendant) from filing a notice
of removal because Nationwide General did not become a party to the state case until two years
after the case was initiated.1
Nevertheless, for the reasons discussed below, although Nationwide General was the later-
served defendant who had the ability to file a notice of removal, it was Nationwide Property who
filed the Notice of Removal. Accordingly, although Nationwide General did not litigate the merits
of the case in state court and arguably did not waive its right to removal, it did not remove this
action. Rather, it was Nationwide Property which removed this case.
D. Timeliness of Removal
Finally, as an alternative argument, Plaintiffs argue that Nationwide Property’s removal is
untimely. The court agrees.
Title 28 U.S.C. § 1446(b)(3) states in relevant part:
Except as provided in subsection (c), if the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion,
order, or other paper form which it may first be ascertained that the case is or has
become removable.
Id. Subsection (c) refers to 28 U.S.C. § 1446(c)(1) which provides: “A case may not be removed
under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year
after commencement of the action, unless the district court finds that the plaintiff has acted in bad
1 The court notes that Nationwide Property, as the earlier-served defendant, did not waive its right to consent
to any potential removal by Nationwide General, the later-served defendant. Under § 1446(b)(2)(C), “earlier-served
defendants who may have waived their right to independently seek removal . . . may nevertheless consent to a timely
motion [for removal] by a later served defendant.” Kennedy v. Bell South Telecomm., Inc., 546 F. App’x 817 (11th
Cir. 2013) (quoting Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1204 (11th Cir. 2008)).
Nationwide Property’s Notice of Removal includes the following: “The undersigned attorneys represent both
Defendants and Nationwide Property and Casualty Insurance Company hereby gives notice of its consent to removal
by Nationwide General Insurance Company.” (Doc. # 1 ¶ 19). Although this language indicates that Nationwide
Property consented to removal by Nationwide General, the court notes that it was Nationwide Property who filed the
Notice of Removal. Accordingly, in order to consent to removal, Nationwide General, as the later-served Defendant,
needed to be the party to file the Notice of Removal. It was not the party who filed the removal petition. It merely
consented to the removal.
faith in order to prevent a defendant from removing the action.” The plain language of § 1446(c)(1)
expressly limits the one-year bar to diversity cases “removed under subsection (b)(3).” Subsection
(b)(3) allows a defendant to remove a case that, while not initially removable, becomes removable
later through “service or otherwise, of a copy of an amended pleading, motion, or other paper from
which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C.
§ 1446(b)(3).
“After examining § 1446(c)(1)’s plain language, every circuit to address the one-year bar
– including the Eleventh Circuit, albeit [in] an unpublished opinion – has determined that it applies
only to cases that were not removable as originally filed but become removable later.” Burns v.
Superior Goods, 2021 WL 512238, at *4 (N.D. Ala. Feb. 11, 2021) (emphasis in original); see id.
(citing Brown v. Tokio Marine & Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002); Price v. Wyeth
Holdings Corp., 505 F.3d 624, 631 n.6 (7th Cir. 2007); Ariel Land Owners, Inc. v. Dring, 351 F.
3d 611, 614 (3d Cir. 2003); N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 886 (5th Cir. 1998);
Carter v. Frito-Lay, Inc., 144 F. App’x 815, 817 (11th Cir. 2005)).
The Ninth Circuit has given us a clear explanation on this point:
The first paragraph of § 1446(b) addresses a defendant’s right to promptly remove
when he is served. The second paragraph addresses a defendant’s right to remove
beyond the initial period of 30 days, if the case only becomes removable sometime
after the initial commencement of the action. Only the latter type of removal is
barred by the one-year exception.
Ritchey v. Upjohn Drug Co., 138 F.3d 1313, 1316 (9th Cir. 1998).
Plaintiffs’ lawsuit was removable as originally filed. Ross Hudak, Tim Hudak, and Carlisle
Creek, LLC were the Plaintiffs on the date the case was filed, and all three parties are citizens of
Alabama. Nationwide Property was the named Defendant when the case was filed, and it is a
citizen of Ohio. There is no dispute that complete diversity of citizenship existed at the time the
case was filed. And, as explained above, the amount in controversy exceeded $75,000. Therefore,
as the case was removable when it was first filed, § 1446(c)(1) simply does not apply here and
Nationwide Property cannot rely on the Amendment to Complaint adding Nationwide General as
a Defendant to file a notice of removal within a one-year period. But, the court’s inquiry does not
end here.
The court must address the “last-served defendant rule,” which permits “each defendant,
upon formal service of process, thirty days to file a notice of removal pursuant to § 1446(b).”
Bailey, 536 F.3d at 1209 (emphasis added). “To apply § 1446(c)(1)’s one-year bar to an otherwise-
removable case to prevent new defendants from removing under § 1446(b)(2)(B), as here, would
run afoul of the Eleventh Circuit’s ruling in Bailey and would thwart the purpose of §
1446(b)(2)(B), ‘which provides each defendant an opportunity to remove an action.’” Burns, 2021
WL 512238, at *5 (quoting P.R. Diamond Prods., Inc., 234 F. Supp. 3d at 1171).
Here, Plaintiffs added Nationwide General as a Defendant on November 18, 2024. (Doc. #
4-3). Therefore, as a new Defendant, upon its receipt of formal service of process, Nationwide
General had the opportunity to file a notice of removal under § 1446(b)’s last-served defendant
rule. Bailey, 536 F.3d at 1209. To be sure, Nationwide General could have done just that – it could
have filed a Notice of Removal on December 16, 2024 (which, assuming service of process was
made on November 18, 2024, was within the thirty-day period to file a notice of removal). (See
Doc. # 1). However, again, Nationwide General was not the Defendant who filed the Notice of
Removal; rather it was Nationwide Property that filed the Notice of Removal. (See Doc. # 1
(“Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendant Nationwide Property and Casualty
Insurance Company files this notice of removal . . . .”)).
It follows that while Nationwide General would have been able to file a Notice of Removal
under § 1446(b), Nationwide Property was not because Nationwide Property’s time to remove the
case to federal court had already long expired. Under § 1446(b)(1), “[t]he notice of removal of a
civil action or proceeding shall be filed within 30 days after the receipt by the defendant.” Section
1446(b)(2)(B) clarifies that “[e]ach defendant shall have 30 days after receipt by or service on that
defendant . . . to file the notice of a removal.” (/d.). Nationwide Property was served on or about
June 7, 2022, when Plaintiffs filed this case in the Circuit Court of Etowah County, Alabama.
(Doc. # 1-1 at 30-32). Therefore, Nationwide Property had thirty days from June 7, 2022 to file a
Notice of Removal, but it did not. Instead, it chose to file its Notice of Removal over two years
later when Nationwide General was added as a Defendant.
For all of these reasons, in addition to Nationwide Property waiving its ability to remove
this case by litigating on the merits, Nationwide Property’s Notice of Removal was untimely.
IV. Conclusion
For the reasons discussed above, Plaintiffs’ Motion for Remand (Doc. # 3) is due to be
granted. An order reflecting this memorandum opinion will be entered contemporaneously.
DONE and ORDERED this March 19, 2025.
CHIEF U.S. DISTRICT JUDGE
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