“In 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 defendant.”
How later courts described this case
- “In 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 defendant.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JASON PATTERSON, )
individually and as father and )
next friend of his minor daughter, )
Hollyn Elizabeth Patterson, a )
minor, )
)
Plaintiffs, )
)
v. ) Case No. 1:20-CV-981
)
HAIER US APPLIANCE )
SOLUTIONS INC., d/b/a GE )
Appliances )
)
Defendant. )
MEMORANDUM OPINION
A GE microwave allegedly injured Jason Patterson and his daughter Hollyn.
Patterson sued “General Electric Company” in state court. But Haier US Appliances
Solutions Inc., d/b/a as GE Appliances (“Haier”) answered the complaint, instead of
General Electric Company. So Patterson amended his complaint to name Haier as
Defendant. Haier removed the case to this court 25 days later.
Patterson has moved to remand (doc. 7), arguing that Haier’s 30-day window
to remove opened months earlier when Haier got a copy of the complaint against
General Electric. But 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
Patterson amended his complaint. Because Haier filed its Notice of Removal (doc.
1) within 30 days of becoming the defendant, Haier’s notice was timely.
Background
This case is more complicated than the introduction makes it seem. It involves
a tale of mistaken identity, a nonparty masquerading as a Defendant, and a third-act
lawyer swap—all playing out on a stage of unsettled law.
A. Facts: Patterson alleges that he was badly burned by frying oil. Patterson
was grilling burgers outside and frying French fries inside on the stovetop. While
Patterson was outside tending the burgers, the filter from his GE Spacemaker
microwave fell into the fryer and ignited a grease fire. When Patterson came inside,
he grabbed the frying pan with both hands and threw it to stop the fire. His hands
were severely burned. According to the complaint, Patterson’s young daughter was
nearly burned and suffered emotional distress from being in the zone of danger.
B. The First Complaint: Patterson sued “General Electric Company” under
state law in state court on March 12, 2020. Doc. 1-1. Patterson alleged that “General
Electric Company (GE) is a corporation incorporated under the laws of New York
State with its principal place of business in Massachusetts.” Id. at 3. Patterson named
no other defendant in this first complaint.
2
In the complaint, Patterson requested the circuit clerk issue a summons, plus
a copy of the complaint and discovery requests, to “General Electric Company” by
care of their registered agent CT Corporation System. Doc. 1-1 at 9. The clerk did
so, and a CT agent signed the return card on March 18, 2020. Id. at 18-20. So General
Electric Company had a copy of the complaint and summons on March 18.
C. Haier: General Electric Company, however, does not sell GE microwaves
because General Electric Company sold all assets and liabilities of its subsidiary, GE
Appliances, to Haier Qingdao Co., Ltd. in June 2016. Doc. 8-1 at 2. As part of the
deal, Haier was given the right to use the “GE” and “GE Appliances” brand names—
meaning that “GE Appliances” is a trade name used by Haier, not a distinct
company. The defendant here, Haier US Appliance Solutions (“Haier”), is a Haier
Qingdao subsidiary “incorporated under the laws of the state of Delaware with its
principal place of business in Louisville, Kentucky.” Doc. 1-3 at 2.
D. Haier’s Answer: The day after CT Corporation accepted service for
General Electric Company (i.e., March 19), an agent of General Electric Company’s
insurance carrier emailed Haier’s third-party claims administrator, Sedgwick Claims
Management, about the complaint.1 Doc. 8-1 at 3. Later that day, a Sedgwick claims
1 Patterson disputes this fact, which Haier’s general counsel declared under penalty of perjury. Patterson contends
(without evidence) that Haier got the complaint from CT Corporation, who happens to be the registered agent for both
General Electric Company and Haier—and many other businesses nationwide. Doc. 9 at 5-6. The court has reviewed
both parties’ submissions and finds that Haier has met its burden of proving this fact.
3
examiner emailed Patterson’s attorney and asked for 30 more days to respond to the
complaint. Doc. 7-1 at 7. Patterson’s attorney agreed. Id. at 6.
An attorney for Haier answered the initial complaint on May 18, 2020. Doc.
1-1 at 21. While Haier kept “General Electric Company” as the defendant in the
caption, Haier called itself the defendant in the body, saying that it had been
“incorrect[ly] named General Electric Company” in the March 12 complaint. Id.
E. The Amended Complaint: So Patterson amended his complaint on June
12 to, in his words, “correct[] the name of the defendant originally styled as ‘General
Electric Company’ so its correct name will be stated as ‘Haier US Appliance
Solutions, Inc. d/b/a GE Appliances.” Doc. 1-1 at 42. Patterson also changed the
caption to say that Haier, not General Electric Company, was the defendant. Id.
Patterson made no other changes, meaning that he carried over the original allegation
that Haier—who Patterson kept calling “GE”—was incorporated in New York and
principally conducts business in Delaware.
A copy of the Amended Complaint was electronically served on Haier’s
counsel the same day (June 12). Doc. 8 at 2. Haier answered the Amended Complaint
10 days later (June 22), again calling itself the defendant and adding itself to the
caption as defendant. Doc. 1-1 at 56. So, for the moment, it seemed this case would
remain in state court.
4
F. Removal: But Haier then added new counsel (doc. 1-1 at 75, 78), who filed
a Notice of Removal in this federal court on July 10—i.e. 28 days after Patterson
amended his complaint. Doc. 1. Haier alleged diversity jurisdiction under 28 U.S.C.
§ 1332, which Patterson does not dispute and the court accepts.
In its Notice, Haier asserted that “Haier has no affiliation with GE” and that
Haier and GE are incorporated in different States and have principal places of
business in different States. Doc. 1 at 2. Haier also asserted that “General Electronic
Company” was the “party-defendant” in Patterson’s original complaint and that
Patterson’s amended complaint “remov[ed] GE as a party-defendant and nam[ed]
Haier as Defendant.” Id. at 2-3. So, according to Haier, its June 12th receipt of the
amended complaint naming it the defendant “was the first service of any pleadings
in this matter upon Haier.” id. at 3, and Haier filed the Notice of Removal within 30
days of that service “upon the last-served Defendant, which is within the time
allowed by 28 U.S.C. § 1446(b).” Id.
Patterson disagreed. He argues that Haier has been the defendant from the
beginning; Patterson simply misnamed Haier as General Electric Company. Doc. 7.
As support, Patterson points to Haier’s May 18 state-court answer, in which Haier’s
original counsel said that the defendant was “Haier US Appliance Solutions, Inc.
d/b/a GE Appliances, incorrect[ly] named as General Electric Company.” Id. at 3.
5
Assuming that Haier was the original (misnamed) defendant, Patterson argues that
“the law required Haier to remove this action, at the latest, by April 18, 2020, which
is the thirtieth day after Reynolds [the Sedgwick claims examiner] received the
complaint.” Id. at 17.
STANDARD OF REVIEW
“Federal courts are courts of limited jurisdiction. They possess only the power
authorized by the Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). For removal to be proper, this court must have
subject matter jurisdiction over the case. “Only state-court actions that originally
could have been filed in federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482 U.S. 286, 392 (1987). Any doubts
regarding removal should be resolved in favor of remand. See Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994); City of Vestavia Hills v. Gen. Fidelity Ins.
Co., 676 F.3d 1310, 1313 (11th Cir. 2012).
ANALYSIS
The lone question is whether Haier timely filed its notice of removal. Title 28,
Section 1446(b)(1) limits the time to file the notice:
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, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30 days
6
after the service of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be served on the
defendant, whichever period is shorter.
Section 1446(b)(1) uses the dispositive “or,” meaning that it covers two scenarios:
(1) local rules require someone send the complaint to the defendant or (2) local rules
do not require someone send the complaint to the defendant, only a summons that
puts the defendant on notice that the complaint was filed. Because Rule 4 of
Alabama’s Rules of Civil Procedure require that “a summons must be served with a
copy of the complaint,” the first half of §1446(b)(1) governs this case:
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, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based[.]
28 U.S.C. § 1446(b).
Haier argues that §1446(b)’s 30-day window has yet to open because no one
has served Haier with a summons or other formal process. In the alternative, Haier
argues that the window opened—at the earliest—when it received an electronic copy
of Patterson’s amended complaint on June 12, 2020. If Haier is right that the 30-day
clock did not start before June 12, then the court must deny Patterson’s motion
because Haier filed its Notice of Removal on July 10. So the question is whether an
event before June 12 triggered §1446(b). Patterson has identified three such events
(although he only explicitly argues the first two).
7
A. March 18: Service of Process on CT Corporation
The earliest trigger date is March 18, 2020, when an agent for CT Corporation
received the initial complaint and summons and signed the return card. But the court
rejects March 18 as a trigger date on factual grounds.
The circuit clerk mailed the summons and complaint to “General Electric
Company,” not Haier. As Patterson admits, “CT is a big, nationwide company.” Doc.
9 at 7. That General Electric and Haier both use CT Corporation as their registered
agent—as do many other companies—does not prove that CT Corporation gave the
summons to Haier, rather than General Electric. To the contrary, Haier has submitted
a sworn declaration that CT Corporation did not give Haier a copy of the notice,
summons, or complaint, and Patterson has not submitted evidence that suggests
otherwise. The court thus finds that Haier did not receive the summons or complaint
on March 18, 2020, so §1446(b) was not triggered on that date.
B. March 19: Email to Sedgwick Claims Management
Patterson argues that the latest trigger date is March 19, 2020, when General
Electric’s insurance carrier emailed Haier’s third-party claims manager, Sedgwick
Claims Management, about the complaint. Haier admits that a Sedgwick examiner
got the email on March 19, and knowledge about the complaint obviously made its
way from Sedgwick to Haier because Haier answered the complaint on May 18. So
8
the court finds that, as a matter of fact, Haier became aware about the lawsuit and its
potential liability to Patterson sometime between March 19 and May 18, 2020. But
the court rejects March 19, 2020, as the trigger date under §1446(b) for two reasons.
1. Haier was not “the defendant” until June 12, 2020.
Haier acted like the defendant—and even called itself the defendant—before
Patterson amended his complaint on June 12. But under Alabama law, Haier was not
actually the defendant until June 12. And that matters.
1. “The district courts may not exercise jurisdiction absent a statutory basis.”
Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). Title 28, Section
1441(a) is the statutory basis to hear state-law cases that were filed in state court but
could have been filed in federal court under diversity jurisdiction (28 U.S.C. §1332).
And §1441(a) only allows “the defendant or the defendants” to the “civil action” to
remove the case to this court:
Except as otherwise expressly provided by Act of Congress, any 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(a) (emphasis added).
The Supreme Court reads the “defendant” limitation strictly. In Home Depot,
for example, the Court held that a counterclaim defendant—i.e., a third party sued
9
by the original defendant—cannot remove a case under §1441(a) because the statute
defines “the defendant” by reference to the plaintiff’s original complaint, not the
defendant’s counterclaim. 139 S. Ct. at 1748. This reading of §1441 overruled 40
years of circuit precedent that expanded the scope of “the defendant” beyond the
defendant named in the original complaint. See Bowling v. U.S. Bank Nat’l Assoc.,
963 F.3d 1030 (11th Cir. 2020) (discussing the effect of Home Depot).
This court must read § 1441(a) as the Supreme Court does, which in this case
means that the court must determine when Haier became “the defendant” to the “civil
action” that Patterson filed in state court. If Haier was not “the defendant” when
Sedgwick received an email about the complaint on March 19, then Haier did not
have the statutory authority to file a Notice of Removal under §1441(a) and thus
Haier’s 30-day clock could not have started under §1446(b).
2. Rule 10(a) of the Alabama Rules of Civil Procedure requires that “[i]n the
complaint the title of the action shall include the names of all the parties.” The
Alabama Supreme Court has held that, under Rule 10(a), “it is the title of the
Complaint and not the body that establishes the parties who are before the court as
litigants.” Cofield v. McDonald’s Corp., 514 So.2d 953, 954 (Ala. 1987).
Cofield is a good example of how Alabama courts read Rule 10(a). Pro se
Plaintiff Cofield listed only “McDonald’s Corporation” in the complaint’s caption.
10
Id. at 953. Cofield later moved to dismiss McDonald’s Corporation, “asserting that
he had sued the wrong party,” and he requested 10 days to add the “proper
defendants” McDonald’s CLP Corporation and McDonald’s Restaurant of
Bessemer, Alabama. Id. The trial court granted the motion to dismiss McDonald’s
Corporation. After a hearing, the court then dismissed the case because “no cause of
action existed against those entities other than McDonald’s.” Id.
The Alabama Supreme Court affirmed. The court noted that “[a]lthough
Cofield probably intended an action against McDonald’s CLP Corporation and
McDonald’s Restaurant of Bessemer, Alabama, he did not properly identify them in
his complaint.” Id. at 954. The court reminded parties that “in order to properly sue
an intended defendant, the plaintiff is required to properly name the defendant.” Id.
And “it is the title of the Complaint and not the body that establishes the parties who
are before the court.” Id.
Like Cofield, Patterson surely intended to sue the correct party in his initial
complaint. But he actually sued “General Electric Company,” the only defendant
named in the title of the initial complaint (or its body). Under Alabama law, that’s
what matters. Haier did not become the defendant under Alabama law—and thus the
defendant under the federal removal statutes—until June 12, 2020, when Patterson
11
amended his complaint to replace General Electric Company with Haier in the title
and body of the complaint.
3. Patterson argues that “General Electric Company” is merely a misnomer
for Haier. So, Patterson argues, Haier has been the named defendant all along, and
the June 12 amendment was just a correction of the name—not a substitution of
distinct entities.
But the parties’ submissions show that Haier and General Electric Company
are distinct entities with distinct corporate structures located in different States.
General Electric Company sold its “GE Appliances” division to Haier’s corporate
parent in 2016 and has had no control over GE Appliances since. That’s why Haier
was substituted for General Electric Company as the proper party in other federal
cases shortly after the sale. See, e.g., In re Refrigerant Compressors Antitrust
Litigation (MDL 2042), 2017 WL 11572333 at *2 (E.D. Mich. Feb. 16, 2017)
(discussing the MDL court’s “Consent Order Substituting Haier US Appliance
Solutions, Inc. for Plaintiff General Electric Co.”’). In fact, the website that Patterson
point the court to calls GE Appliances “a Haier Company,” not a “General Electric
Company.” It’s even in the logo:
12
www.geappliancesco.com/company-overview/.
Based on these facts, the court finds that “General Electric Company” was not
a misnomer for Haier in Patterson’s initial complaint. Instead, General Electric
Company is a distinct entity that sold all of its assets and liabilities to Haier’s
corporate parent in 2016. So Patterson’s substitution of the party defendant in the
June 12, 2020 amended complaint was necessary to make Haier “the defendant”
under Alabama law and the federal removal statutes.
4. Patterson will likely call foul, maybe even shenanigans. He has a point.
Haier filed an answer calling itself the defendant on May 18—nearly a month before
the June 12 amendment. But Haier could not unilaterally make itself the defendant;
either Patterson had to amend the complaint or Haier had to get a court order that
added Haier as a party.2 See Cofield, supra.
If Patterson wanted the removal clock to start running against Haier on March
19, he could have promptly amended his complaint after being told that Haier was
the proper defendant, rather than waiting until mid-June. Alabama courts freely
allow amendments to substitute the proper defendant. See, e.g., Ex parte Maxwell,
2 Requiring substitution by the plaintiff or the trial court protects the plaintiff. The Fifth Circuit recently remanded a
case in which a diverse party not named in the state court complaint nonetheless called itself the defendant, answered
the complaint, then removed the case to federal court against the plaintiff’s will. See Valencia v. Allstate Texas Lloyd’s,
976 F.3d 593 (5th Cir. 2020). Reading §1441 and §1446 the same way this court does, the Fifth Circuit held that “[t]he
law is clear that a case filed in state court may be removed to federal court only by ‘the defendant or the defendants.’
28 U.S.C. § 1441(a). A non-party, even one that claims to be the proper party in interest, is not a defendant and
accordingly lacks the authority to remove a case.” Id. (emphasis added).
13
812 So.2d 333 (Ala. 2001) (affirming the trial court’s decision to grant a motion to
amend the complaint to add a defendant to the caption after the defendant moved for
dismissal because the plaintiff omitted her from the title of the complaint).
And if Patterson thought Haier’s state-court actions were unfair, he could have
argued that Haier waived removal under the “litigating on the merits” doctrine. See
Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246-47
(11th Cir. 2004). But he did not raise that argument, so it is waived, and the court
will not ignore the text of the removal statutes or Supreme Court precedent as a back
door to judging Haier’s actions in state court—contradictory as they might be.
2. Haier was not formally served before June 12, 2020.
Again, the first half of §1446(b)(1) states:
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, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based[.]
28 U.S.C. §1446(b)(1). Setting aside whether Haier and its third-party claims
administrator constitute “the defendant” under §1446(b), the court still must
determine whether the March 19 email to Haier’s claims administrator amounts to
“receipt by the defendant, through service or otherwise, of a copy of the initial
pleading[.]” Id. Read plainly, it could. Haier “otherwise” received the complaint—
i.e., in some way other than service—when someone emailed Haier’s claims
14
administrator about the complaint. But the Supreme Court rejected this reading of
the phrase “through service or otherwise” in Murphy Bros. v. Michetti Pipe
Stringing, 526 U.S. 344 (1999).
Murphy is similar to this case: it happened in Alabama, and it involved a faxed
copy of the complaint (rather than an email). Michetti did not formally serve Murphy
with the complaint and summons when Michetti filed the complaint. Instead,
Michetti’s counsel faxed a “courtesy copy” of the complaint to Murphy’s vice
president three days after filing the complaint. The parties then engaged in settlement
discussions. After about two weeks, Michetti formally served Murphy.
Murphy filed its notice of removal 30 days after being formally served, which
was 44 days after Murphy received a faxed copy of the complaint. Michetti moved
to remand for failure to file the notice within 30 days of receiving the complaint. The
district court denied the motion, holding that the 30-day removal period did not start
until Murphy was served with the summons. The Eleventh Circuit reversed, finding
that the faxed copy amounted to receipt “through service or otherwise.”
The Supreme Court agreed with the district court. The Court wrote that:
We read Congress’ provisions for removal in light of a bedrock
principle: An individual or entity named as a defendant is not obliged
to engage in litigation unless notified of the action, and brought under
a court’s authority, by formal process. Accordingly, we hold that a
named defendant’s time to remove is triggered by simultaneous service
of the summons and complaint, or receipt of the complaint, “through
15
service or otherwise,” after and apart from service of the summons, but
not by mere receipt of the complaint unattended by any formal service.
526 U.S. at 347-48. The Court then noted 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 defendant.” Id. at 350. 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.
The court finds that Haier was not formally served on March 19 or any other
date before June 12. The state court clerk sent the summons and initial complaint to
General Electric Company, not Haier. Doc 1-1 at 7 (Pattersons’ request for service);
at 18-20 (Summons and signed receipt of service). Haier did not get a copy that day.
Doc. 8-1 at 4 (Brown declaration). While Haier’s third-party claims examiner
received an email about the complaint, no evidence shows that the examiner or
anyone affiliated with Haier was served a copy of the summons. To the contrary,
Haier has submitted an unrebutted, sworn declaration that it never received a
summons. Doc. 8-1 at 4. If sending the named defendant a faxed copy of the
complaint was insufficient to start the clock in Murphy, then emailing a nonparty’s
claims administrator is likewise insufficient here.
16
C. May 18: Haier answers the initial complaint
While Patterson’s primary argument is that the 30-day clock started no later
than March 19, he raises an argument that could make May 18 the start date. Again,
Murphy says that service of the summons starts the 30-day removal clock “unless a
named defendant agrees to waive service.” 526 U.S. at 351. Patterson argues that
Haier waived service under Rule 12(h)(1) of the Alabama Rules of Civil Procedure
when Haier filed an answer on May 18, rather than a Rule 12(b) motion challenging
the sufficiency of service. So, Patterson argues, even if the March 19 email did not
start the 30-day clock, the filing of the May 18 answer did.
But the court rejects May 18 as the trigger date for two reasons. First, Murphy
says that the “named defendant” can waive service and start the 30-day clock. Id. As
discussed, Haier was not the “named defendant” until June 12, so the state court had
no power over Haier, see id. (“In 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 defendant.”), and Haier could not file a Notice of Removal under
§1441(a). See Home Depot, supra.
Second, the Alabama rules say that a “defense of … insufficiency of process
or insufficiency of service of process is waived … if it is neither made by motion
under this rule nor included in a responsive pleading[.]” Ala. R. Civ. P. 12(h)(1)(b)
17
(emphasis added). In its May 18 answer, Haier included the defenses that “service
was improperly perfected” and “insufficient process.” Doc. 1-1 at 26. Patterson
argues that these brief objections cannot preserve the defenses by citing a Mississippi
decision that says, “[o]bjections to the sufficiency of process must be specific and
must point out in what manner the plaintiff has failed to satisfy the service provision
utilized.” Thornton v. Freeman, 242 So.3d 188, 190 (Miss. App. 2018). But
Mississippi law is not Alabama law.
Neither party cites an Alabama case on point, and the most relevant Alabama
case that the court could find is Ex Parte Movie Gallery, Inc. 31 So.3d 104 (Ala.
2009), which involved the preservation of a challenge to venue, not process or
service of process. Defendant Movie Gallery briefly stated in its answer that “[Movie
Gallery] plead[s] improper venue.” Id. at 107. Two months later, Movie Gallery filed
a Rule 12(b)(3) motion challenging venue. After the trial court denied Movie
Gallery’s motion, the Alabama Supreme Court granted a writ of mandamus.
Relevant here, the state supreme court held that “the assertion of the Rule 12(b)(3)
affirmative defense of improper venue in Movie Gallery’s answer was sufficiently
clear to raise that defense.” Id. at 110. Given Movie Gallery, this court finds that
Haier’s brief pleading of Rule 12(b)(4) and 12(b)(5) defenses in the May 18 answer
was enough to avoid waiver under Alabama’s Rule 12(h)(1).
18
D. June 12: Patterson amends his complaint
As detailed above, the court finds that Haier’s 30-day window to file a notice
of removal under §1441(a) and §1446(b) could not have opened before June 12,
2020, in part, because that is the date that Haier became “the defendant” and thus
§§1441(a) and 1446(b) applied to Haier. See Home Depot, supra. While the Eleventh
Circuit has yet to do so, the court notes that this outcome is in line with other circuits
that have adopted the rule that “the addition of a new defendant ‘opens a new
window of removal’ under 1446(b)” and “as to the new defendant, removability is
determined as of the date of receipt of service of the amended complaint, not as of
the date on which the original suit was filed in state court.” Braud v. Transp. Serv.
Co. of Illinois, 445 F.3d 801, 805 (5th Cir. 2006) (quoting Knudsen v. Liberty Mut.
Ins. Co., 411 F.3d 805 (7th Cir. 2005)). This “new window” rule eliminates the
problem of running the clock before a party becomes the defendant and thus before
he can file a notice of removal under §1441(a).
The court does not decide whether electronic service of the June 12 amended
complaint, without a summons, triggered Haier’s 30-day clock under §1446(b) and
Murphy because the court would deny Patterson’s motion either way. So that
analysis would be dicta.
* * *
19
This case could allow the Circuit Court to determine whether it agrees with
other circuits that “the addition of a new defendant ‘opens a new window of removal’
under 1446(b).” Braud, 445 F.3d at 805. So this court will issue an order that allows
the issue to be taken on interlocutory appeal. See 28 U.S.C. § 1292(b).
But it’s not the cleanest vehicle to answer the question thanks to Haier’s
participation in the state court proceedings before Patterson made Haier a party. As
explained, the court finds that Haier’s state-court actions cannot change the plain
text of the removal statutes and the Supreme Court’s decisions in Home Depot and
Murphy. Instead, the proper challenge to Haier’s state-court actions was to argue
waiver under the “litigating on the merits” doctrine. See Yusefzadeh, 365 F.3d at
1246-47. But Patterson did not make that argument, so it 1s not before the court.
CONCLUSION
For the reasons stated above, the court will DENY Patterson’s motion for
remand (doc. 7). The court will enter a separate order carrying out this conclusion
and certifying this case for possible interlocutory review under 28 U.S.C. § 1292(b).
DONE on January 6, 2021.
Le cel Lie
REY MAZE
UNITED STATES DISTRICT JUDGE
20