There was a fire at the M/V Prime Time, a boat owned by Prime Time Charters stationed in the Bradford Marine. The blasé hurled flaming debris to other vessels, destroying Noble and Muir’s boats. The two commences separate actions the 17th Judicial Circuit. Noble amended her complaint to add Prime Time as a party, removed the proceeding to federal court, claiming it invoked admirality jurisdiction. Noble commenced his suit on June 7, 1989, and amended her complaint to add primetime on May 9, 1990. Prime time (the newly added D) removed the proceeding to federal court, asserting that removal was timely because it came within thirty days of service of the Amended Complaint. Likewise, the Muir action was also removed after Plaintiff amended his complaint to add Prime Time as a D.
“This court remanded the Noble action to the state court for failure of all D’s to join in removal.” Then, Prime Time filed a Supplemental Notice of Removal, attempting to ascent to federal court through the Muir proceeding.
Can an added D remove case to federal court after 30 days limit has expired for the original Ds?
The notice of removal of a civil action must be filed within thirty 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.
The addition of a new Defendant in an Amended complaint, does not start the time for removal anew when the original Complaint itself was removable. Unless the amendment sets forth a new basis of federal jurisdiction, subsequent events do not make a removable case “more removable or again removable.” Thus the failure of initial D to remove during the thirty-day time period is deemed a waiver of the right to removal.
Bradford’s failure to remove, therefore, is binding on Prime Time (the secondly added D), because the Plaintiff’s amendment (addition of a D) did not “change the nature of the action as to constitute substantially a new suit begun that day.” For the same reason, removal of the Noble case was untimely.
Here, D1 could have removed the case to the federal court but he didn’t. When D2 was added, no new federal jurisdiction was created. Therefore, the original 30 day limit not only applied to D1, but also to D2. Note that if federal jurisdiction was created only after the addition of D2, then a new 30 day limit would start.