reconsideration of the court's ruling on that issue. Its request for reconsideration on that issue consists solely of a recapitulation of the arguments stated earlier and which the court rejected in its memorandum dated October 22, 1992. We will, therefore, deny plaintiff's motion for reconsideration of our ruling on that issue.
Timeliness of motion to remand
Plaintiffs' failure to raise the matter of the court's discretionary right to decline jurisdiction under the DJA until the filing of its motion for reconsideration dated December 4, 1992 raises an issue as to the timeliness of a request for remand on that basis. Interstate's notice of removal was filed May 22, 1992.
McDowell filed a motion for remand on June 22, 1992, thirty days after the date of removal. McDowell's motion for reconsideration of the court's order dated October 22, 1992 denying its motion for remand was filed December 4, 1992. The lateness of McDowell's motion for reconsideration brings into question whether the court can consider arguments raised for the first time in its motion for reconsideration.
Remand of cases removed from state court is governed by 28 U.S.C. § 1447(c).
Section 1447(c) was amended in 1988 to establish a thirty-day deadline for filing a motion to remand the case on the basis of a "defect in removal procedure". All such motions must be filed within thirty days after the notice of removal, or the alleged defect is waived. Motions to remand for lack of subject matter jurisdiction are not expressly excluded from the thirty-day post-removal litigation period, and may be filed at any time before entry of final judgment. 28 U.S.C. § 1447(c).
Section 1447(c) seems clearly to apply the thirty-day limit only to motions for remand based "on any defect in removal procedure," and thus would not apply to a motion such as the one before us, based on an alleged discretionary right to decline jurisdiction. However, ambiguous legislative history has tended to cloud the clarity of the statute.
This uncertainty was settled by the Third Circuit's ruling in Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1213 (3d Cir.), cert. denied, U.S. , 112 S. Ct. 302 (1991). In Foster, supra, the court held that the statute was clear on its face, and that the thirty-day time limit did not apply to a motion for remand based on a forum selection clause.
The court held that motions for remand not based on an alleged defect in the removal procedure may be filed beyond the thirty-day post-removal period. The court cautioned, however, that the time for filing such motions is not unlimited. The district court may, in the exercise of its discretion, "deny as untimely a non-procedural-defect, non-jurisdictional motion to remand if made at an unreasonably late stage of the federal litigation." Id. at 1213 n. 8. Accord: Melahn v. Pennock Insurance, Inc., 965 F.2d 1497, 1502-03 (8th Cir. 1992) (thirty-day limit not applicable to motion for remand based upon abstention). Cf. In re Shell Oil Co., 932 F.2d 1518, 1522 (5th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 914 (1992) (thirty-day limit applies to all motions for remand not based on subject matter jurisdiction).
Based on the foregoing, it is clear that the new ground for remand asserted in plaintiff's motion for reconsideration is time-barred only if we find that it was filed at an "unreasonably late stage" of the federal litigation. The motion for reconsideration was filed about 6 1/2 months after the notice of removal, while the case was still in the discovery stage. We do not consider that delay so significant as to warrant a finding that the motion was filed "unreasonably late". We will, therefore, consider the new ground asserted by plaintiffs for remand on its merits.
Discretionary claims under the Declaratory Judgment Act
This brings us to the question of whether plaintiff has asserted a valid basis for remand. Defendant argues that this court cannot entertain a motion to remand on non-statutory grounds. It contends that the only bases upon which this court can order a remand to the state court are those stated in the statute, i.e. for lack of subject matter jurisdiction or a defect in the removal procedure.
The line of cases which defendant cites for this principle is not followed by the Third circuit. Defendant relies on the United States Supreme court decision in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 245, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976) and subsequent federal decisions applying that ruling, Ryan v. State board of Elections, 661 F.2d 1130, 1134 (7th Cir. 1981)
and Kirkbride v. Continental Casualty Company, 933 F.2d 729 (9th Cir. 1991).
Not only has the Third Circuit declined to follow the line of authority upon which defendant relies, it has held that that portion of the Thermtron, supra, ruling which defendant uses as the cornerstone of its argument was overruled by Carnegie-Mellon University v. Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988).
In Foster, supra, 933 F.2d at 1214, the Third circuit held: "Cohill clearly overruled Thermtron to the extent that Thermtron had held that only statutory grounds for remand are authorized." The court explained its reasoning as follows:
. . . Thermtron contained absolute language to the effect that the only grounds available for remand are those specified by section 1447(c). See 423 U.S. at 345. . . . Twelve years later, however, in Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 . . . the court found that the language in Thermtron "loses controlling force when read against the circumstances of that case." Id. at 355 . . . "The Thermtron decision," which, again, involved the sua sponte remand of a removed diversity action because of the congested state of the district court's docket, "was a response to a clearly impermissible remand, of a kind very different from that at issue here." Id. at 621 . . . In Cohill the district court remanded the pendent claims remaining in a removed federal question case once the federal question counts of the complaint had been eliminated. It had already been settled that once such a situation presented itself the district court could, in the exercise of its discretion, dismiss the remaining pendent claims. The Cohill court took this rule a step further and concluded that
a district court has discretion to remand to state court a removed case involving pendent claims upon a proper determination that retaining jurisdiction over the case would be inappropriate. The discretion to remand enables district courts to deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine. Such discretion is precluded neither by the removal statute nor by our decision in Thermtron. Id. at 357.