Cunningham v. State Farm Fire and Casualty Company

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN CUNNINGHAM, )

) CASE NO. 4:25-cv-452

Plaintiff, )

)

v. ) JUDGE BENITA Y. PEARSON

)

STATE FARM FIRE )

AND CASUALTY COMPANY ) MEMORANDUM OF OPINION

) AND ORDER

Defendant. ) [Resolving ECF No. 7]

Pending before the Court is Plaintiff’s Motion to Remand. ECF No. 7. The motion is

fully briefed. See ECF No. 8; ECF No. 9. For the following reasons, the Court grants Plaintiff’s

Motion to Remand.

I. Background

On March 13, 2023, Plaintiff filed a civil lawsuit against Defendant in Trumbull County

Court of Common Pleas alleging breach of contract regarding Defendant’s denial of insurance

coverage for damage to Plaintiff’s chimney caused by fire event at his residence. See Mot. to

Remand, ECF No. 7; Compl., ECF No. 7-1. In August 2024, after discovery closed, Plaintiff

filed an Amended Complaint that included a second claim for breach of duty of good faith and

fair dealing, and bad faith. ECF No. 7-2. Defendant subsequently retained new counsel (ECF

No. 7-3) and then filed an Amended Answer to the Amended Complaint. ECF No. 7-4. The

state court scheduled the case for trial to occur on January 22, 2025. ECF No. 7-5. On

November 6, 2024, Defendant filed a motion for leave to reopen discovery for the limited

purpose of deposing Plaintiff’s two expert witnesses relating to Plaintiff’s second claim. ECF

No. 7-6. On January 17, 2025, the state court granted Defendant’s motion to reopen discovery.

ECF No. 7-7. At that time, the parties also notified the assigned magistrate that Plaintiff

intended to voluntarily dismiss the Amended Complaint pursuant to Ohio Civ.R. 41(A) and refile

the Amended Complaint under the Ohio Savings Statute (Ohio Rev. Code § 2305.19). ECF No.

7-8. Plaintiff dismissed and refiled the lawsuit on February 6, 2025. ECF No. 1-3. On March 6,

2025, Defendant’s removed the case under 28 U.S.C. § 1441 and 28 U.S.C. § 1446(b)(1). ECF

No. 1.

II. Standard of Review

A defendant may remove a civil action filed in state court under 28 U.S.C. § 1441, when

there is either diversity jurisdiction, pursuant to 28 U.S.C. § 1332, or the claims involve a federal

question, as defined in 28 U.S.C. § 1331. Notice of removal must be filed within 30 days after a

defendant receives the initial pleadings through service (or otherwise) or notice that a previously

unremovable case is now removable. 28 U.S.C. § 1446(b)(1) and (b)(3). A party seeking

removal bears the burden of establishing its right to removal. Eastman v. Marine Mechanical

Corp., 438 F.3d 544, 549 (6th Cir. 2006). Application of “the removal statute should be strictly

construed and all doubts resolved in favor of remand.” Id. at 549-50 (citing Brown v. Francis,

75 F.3d 860, 864-65 (3d Cir. 1996)); Mays v. City of Flint, Mich., 871 F.3d 437, 442 (6th Cir.

2017) (citing Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007)).

III. Discussion

The parties disagree on whether Plaintiff’s voluntary dismissal of his case under Ohio

Civ.R. 41(A) and subsequent refiling of the same action revived Defendant’s opportunity to

remove the case under 28 U.S.C. § 1446(b). As explained below, Plaintiff’s refiled action is

merely a continuation of litigation that has been ongoing in state court since March 2023 and,

therefore, Defendant’s removal is untimely.

Defendant argues that Plaintiff’s refiling of the action restarted the 30-day clock to

remove the case under 28 U.S.C. § 1446(b). ECF No. 8. In support of its argument, Defendant

points to an unpublished case from the Northern District of Ohio, Loftus v. North Wind Portage,

LLC, No. 3:21-cv-1778, 2022 WL 19741 (N.D. Ohio Jan. 3, 2022). Although the Loftus court

remanded the case under the “rule of unanimity,” (see id. at *2), it rejected the plaintiff’s

argument that because her refiled action was merely a continuation of the prior action, the 30-day

removal period did not restart. Id. at *1. The court noted that “[w]hen a complaint is voluntarily

dismissed without prejudice, as was the First Complaint, in the eyes of the law it is as if the

action had never been filed.” Id. (quoting Smith v. Kyphon, Inc., No. CIV. A. 3:08cv0329, 2008

WL 2566429, at *2 (M.D. Tenn. June 24, 2008)) (internal quotations omitted).

Plaintiff retorts that his refiled action is merely a continuation of years-long litigation and

that Defendant’s removal is untimely. Plaintiff frames Defendant’s removal under the “revival

of removal” doctrine, (see ECF No. 9), a judicially created exception to the 30-day removal

period that provides, in certain narrow circumstances, a defendant who has initially waived

removal may “revive” their right to remove and restart the 30-day removal period. See Johnson

v. Heublein Inc., 227 F.3d 236, 241-42 (5th Cir. 2000) (the 30-day removal period is “revived”

when “the complaint is amended so substantially as to alter the character of the action and

constitute essentially a new lawsuit”); cf. Wilson v. Intercollegiate (Big Ten) Conference Athletic

Ass’n, 668 F.2d 962, 965 (7th Cir. 1982) (declining to apply the doctrine because the amended

complaint did not alter the character of his due process and equal protection claims from the

initial complaint). See also 14C FED. PRAC. & PROC. JURIS. § 3731 (“Some circuits have

adopted a doctrine pursuant to which in ‘exceptional circumstances’ the court may permit

removal even when defendants fail to comply fully with Section 1446(b) within the 30-day

removal period.”).

The “revival of removal” doctrine is generally applied to amended complaints, although

some courts have analyzed and declined to apply it in the context of refiled actions. O’Donnell

v. Hanover Ins. Grp., No. 1:25-cv-875, 2025 WL 2021651, at *3 (N.D. Ohio July 18, 2025). In

an analogous case from the Eastern District of North Carolina, the court considered whether the

defendants’ removal was timely after the plaintiff voluntarily dismissed their amended complaint

and then refiled the same day. Korzinski v. Jackson, 326 F. Supp. 2d 704, 705-06 (E.D.N.C.

2004). The court noted that:

Federal court decisions interpreting § 1446 reflect a pragmatic

approach to the thirty-day limit for removal that does not favor

removal under circumstances of this case where the “new action”

commenced is no more than a formality and a continuation, in all

other respects, of the original action.

Id. at 706. Recognizing that the parties had completed substantial discovery and that the state

court had scheduled the case for trial prior to removal, the district court concluded that

permitting defendants to remove the case would contravene the purpose behind the 30-day limit

because the refiled complaint “only nominally served to commence a new action, but in

substance was only a continuation of the previous action, without change.” Id. at 707. In

reaching this conclusion, the Korzinski court relied, in part, on the statute’s policy considerations

of: (1) preventing defendants from adopting a “wait and see” strategy to removal, and (2)

avoiding delay and duplication of judicial resources. Id. The court explained that “removal in

this case would interfere with litigation that had already substantially progressed in state court,

thereby raising federalism concerns.” Id.

Although the Sixth Circuit has not addressed the “revival of removal” doctrine, some

district courts within this circuit have assessed the exception and declined to apply it using

similar logic to that relied on in Korzinski. See State ex rel. Slatery v. Tenn. Valley Auth., 311 F.

Supp. 3d. 896, 908 (M.D. Tenn. 2018) (declining to apply the doctrine to an amended complaint

because the original case was not “abandoned . . . or twisted [ ] into some fundamentally

unrecognizable creature.”); Warren v. State Farm Mut. Auto. Ins. Co., No. 06-15054, 2007 WL

1267579, at *5 (E.D. Mich. Apr. 30, 2007) (remanding the case because it “appear[ed] to be a

continuation of an established lawsuit because both cases involve[d] the exact same parties, same

medical provider, and same type of bills . . . that [were] once against being denied by Defendant

State Farm.”). Another court in this district has also recently addressed the “revival of removal”

doctrine in the context of a refiled action. See O’Donnell, 2025 WL 2021651. In O’Donnell, the

defendant removed the case after plaintiff voluntarily dismissed the state-court action and then

refiled the same complaint against the same defendant. Id. at *1-2. The district court remanded

the case, concluding that “when there are two identical actions against the same defendant and

facts alleged in the initial action revealed that either diversity or federal question jurisdiction

existed and the defendant failed to remove within the required 30 days, his subsequent attempt to

remove the second action is rejected as untimely.” Id. (quoting Estate of Wines by Wines v. Blue

Cross Blue Shield of Mich., No. 12-10906, 2012 WL 13013370, at *7 (E.D. Mich. June 18,

2012)). See also 14C FED. PRAC. & PROC. JURIS. § 3731 (“[A]n amendment of the

complaint will not revive the period for removal if the state-court case previously was removable

but the defendant failed to exercise the right to remove. The result will be the same when any

other change occurs . . .”) (emphasis added). In summary, when the underlying claims of the

prior action are essentially the same as the new action, the defendant’s right to remove is not

revived.

Here, the refiled action is essentially a continuation of the prior action. The refiled

complaint is virtually identical to Plaintiff’s Amended Complaint, and Defendant has answered

it. Compare, Refiled Am. Compl. ECF No. 1-3, with Am. Compl. ECF No. 7-2; Am. Answer to

Am. Compl., ECF No. 7-4. Permitting Defendant a second bite at the removal apple would fly in

the face of the policy considerations underlying the 30-day removal cutoff to avoid delay and

duplication of judicial resources. Significant discovery relating to Plaintiff’s claims has been

completed in the state-court proceedings. See Mot. to Remand, ECF No. 7; Reply in Supp. Mot.

to Remand, ECF No. 9. Moreover, summary judgment has been fully briefed before the state

court, and, but for the trial court reopening discovery for the limited purpose of deposing two

expert witnesses, this case was ready for a trial scheduled for January 2025. See Tr. Notice, ECF

No. 7-5; Mot. to Reopen Disc., ECF No. 7-6; Order Reopening Disc., ECF No. 7-7; ECF No. 9.

Defendant had notice that the original action was removable in March 2023 and failed to remove

then. ECF No. 7. Plaintiff refiling the same action, with the same claims, against the same

defendant, involving the same underlying facts does not revive Defendant’s right to remove.

IV. Conclusion

For the reasons stated above, Plaintiff’s Motion to Remand (ECF No. 7) is granted, and

the action is remanded to the Trumbull County Court of Common Pleas.

IT IS SO ORDERED.

August 29, 2025 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge