The opinion of the court was delivered by: A. Richard Caputo, United States District Judge
Before the Court is a motion by Defendants Lori Dring and Nancy Asaro
to stay concurrent state court proceedings concerning this matter. (Doc.
57.) In opposition, Plaintiff Ariel Land Owners, Inc. contends that
Defendants removed this case in violation of the one-year time limitation
of 28 U.S.C. § 1446(b). Therefore, Plaintiff argues, the Court lacks
subject matter jurisdiction over this case. (Doc. 61.) The Court agrees.
I lack subject matter jurisdiction to hear this case because §
1446(b) applies to this case and because this one-year time limitation is
a jurisdictional requirement. I will remand this matter to the Court of
Common Pleas of Wayne County, Pennsylvania. Because I lack subject matter
jurisdiction, all other pending motions will be denied as moot.
Plaintiff commenced this action on May 17, 1999 by filing a complaint
to quiet title in the Court of Common Pleas of Wayne County.*fn1 This
action could have been filed in federal court through diversity
jurisdiction, and it was removable at the time of filing.*fn2 On
February 15, 2001 — nearly 21 months after Ariel commenced this action —
Defendants removed based on diversity jurisdiction. On March 22, 2001,
Plaintiff filed a motion to remand solely on the ground that Defendants
failed to satisfy the $75,000 amount-in-controversy requirement. (Doc.
4.) The Court denied
Plaintiff's motion on July 3, 2001. (Doc. 16.)
The motion before the Court is really a dispute over whether this case
will proceed in state or federal court: Plaintiff wants to be in state
court; Defendants want to be in federal court. Each side had the
opportunity to secure its desired forum. Defendants could have ensured
themselves a federal forum by removing within 30 days of the filing of
the complaint in 1999. (28 U.S.C. § 1446(b) states that "[t]he notice
of removal of a civil action or proceeding shall be filed within thirty
days after the receipt by the defendant" in cases that are initially
removable.) After Defendant failed to remove within 30 days of filing,
Plaintiff had its chance to ensure a state forum. Plaintiff could have
filed a motion to remand within 30 days of Defendant's late removal; the
case then would have been remanded. See 28 U.S.C. § 1447(c).
Defendant's failure to comply with the 30-day time limitation is a
procedural defect, and Plaintiff waived this requirement by not objecting
within 30 days. In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 450-52
(3d Cir. 2000); Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46,
50-51 (3d Cir. 1995); Two Bros. Scotto, Inc. v. SDG Macerich Props.,
L.P., 2000 U.S. Dist. LEXIS 10748 at *8 (E.D.Pa. July 24, 2000) (a
defendant's failure to comply with the 30-day requirement of §
1446(b) is a waivable procedural defect in the removal process under the
rubric of 28 U.S.C. § 1447(c) and not a non-waivable jurisdictional
2. Section 1446(b) and the "except that" clause
The issue before the Court relates to § 1446(b) and the scope and
nature of the "except that" clause. Section 1446(b) reads as follows:
The notice of removal of a civil action or
proceeding shall 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, or within thirty days 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.
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 from which it
may first be ascertained that the case is one which is
or has become removable, except that a case may not be
removed on the basis of jurisdiction conferred by
section 1332 of this title more than 1 year after
commencement of the action.
Two questions arise concerning the one-year time limitation of the
"except that" clause:
1. Does the one-year time limitation apply to all
diversity cases or only cases that were not
2. Is this time limitation procedural or jurisdictional?
3. Does the one-year time limitation apply to all diversity cases or
only cases that were not initially removable?
The first question is whether the one-year time limitation applies to
all diversity cases or only diversity cases that were not removable at
the time they were initially filed. The Court of Appeals for the Third
Circuit has not answered this question; nor has the United States Supreme
Court addressed it directly. Thus, I must rely on my own interpretation
of the statute's text and structure along with persuasive authority of
other courts — including the Supreme Court — and consideration of the
statute's purpose and legislative history.
a. Discussion of "plain meaning" cases
Courts of Appeals in four circuits, focusing on the "plain meaning" of
§ 1446(b), have held that the one-year time limitation applies only
to cases that were not initially removable. Ritchey v. Upjohn Drug
Co.,139 F.3d 1313, 1316 (9th Cir. 1998); New York Life Ins. Co. v.
Deshotel, 142 F.3d 873, 886 (5th Cir. 1998); Brown v. Tokio Marine and
Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002); Brierly v. Alusuisse
Flexible Packaging, Inc., 184 F.3d 527, 534-35 (6th Cir. 1999).*fn4 I am
not persuaded by the analysis in these decisions.
This line of cases originated in 1998 when the Court of Appeals for the
Ninth Circuit issued the Ritchey decision. Two months later, the Court of
Appeals for the Fifth Circuit issued a similar decision in Deshotel.*fn5
In Brierly and Brown, the Sixth and Eighth Circuit Courts of Appeals,
respectively, followed Ritchey and Deshotel. I will focus on Ritchey and
Deshotel, as they provide the most detailed explanation of the view for
which they stand.
Ritchey begins its analysis by looking at "plain language" of §
1446(b) as a whole, which includes the statute's sentence structure.
Citing the "general rule" that "a qualifying phrase or clause only
modifies that which immediately precedes it," id. at 1316 (quoting Zogbi
v. Federated Dep't Store, 767 F. Supp. 1037, 1039 (C.D.Cal. 1991), Zogbi
citing Norman J. Singer, SUTHERLAND STATUT ORY CONSTRUCTION, § 47.33
(4th ed. 1984)), the Ritchey court concluded that the "except that"
clause must apply only to the type of cases described in the words
immediately preceding the comma — viz., cases that were not removable at
the time they were initially filed. To reach any other conclusion would
be to "twist ordinary language usage and rules of grammar," the Ritchey
court concluded. Id. at 1316.*fn6
Similarly, the Deshotel court noted the subordinate positioning of the
"except that" clause, suggesting that any construction of § 1446(b)
that applied the one-year time limitation to all cases would require one
to "read the words `except that' out of the statute and treat the
remainder of the phrase as if it were an independent one-sentence
paragraph." Id. at 886. "If Congress had intended for the one-year limit
to apply to all diversity removals," the Deshotel court continued, "it is
highly unlikely it would have chosen such an eccentric and obscure means
to accomplish its purpose." Id. at 886.
The Ritchey and Deshotel courts both viewed their approach to the
interpretation of § 1446(b) as one of strict construction.*fn7 The
Deshotel court acknowledged that "[i]n determining the meaning of the
statute, we must look not only to the particular statutory language, but
also to the statute as a whole, including its design, object, and
policy." Yet in the end, the Deshotel court finds the legislative history
ambiguous and resolves this issue through a straightforward analysis of
the plain meaning of the text. Id. at 886. The Ritchey court gives little
weight to factors other than the statute's plain meaning, explaining that
"[b]ecause we are satisfied that this reading is plain on the face of the
statute, there ...