Commercial Litigation and Arbitration

Removal — One-Year Limit — Equitable Exception?

28 U.S.C. § 1448(b) provides a seemingly absolute one-year time limit on removal of non-CAFA cases that were not initially removable but become so later:

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 ... of a copy of [a] ... 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 the commencement of the action.

As noted in Harris v. Alamo Rent A Car, LLC, 2007 U.S. Dist. LEXIS 42138 (E.D. Mo. June 11, 2007), the cases are divided as to whether one-year limit is subject to an equitable exception. Compare Tedford v. Warner-Lambert Co., 327 F.3d 423, 425-26 (5th Cir. 2003) (yes); Foster v. Landon, No. Civ. A. 04-2645, 2004 WL 2496216, at *2 (E.D. La. Nov. 4, 2004) (yes); Leslie v. BancTec Serv. Corp., 928 F. Supp. 341, 347 (S.D.N.Y. 1996) (yes); Saunders v. Wire Rope Corp., 777 F. Supp. 1281, 1284 (E.D. Va. 1991) (yes); Kite v. Richard Wolf Med. Instruments, 761 F. Supp. 597, 600-01 (S.D. Ind. 1989) (yes) with Lovern v. Gen. Motors Corp., 121 F.3d 160, 163 (4th Cir. 1997) (no exception; dicta); Russaw v. Voyager Life Ins. Co., 921 F. Supp. 723, 724-25 (M.D. Ala. 1996) (no); Jones Mgmt. Servs., LLC v. KES, Inc., 296 F. Supp. 2d 892, 894 (E.D. Tenn. 2003) (no); Santiago v. Barre Nat'l, Inc., 795 F. Supp. 508, 510-12 (D. Mass. 1992) (no); Caudill v. Ford Motor Co., 271 F. Supp. 2d 1324, 1327 (N.D. Okla. 2003) (no).

Judge Jean Hamilton, in the most recent decision on the subject, concluded in Harris that no equitable exception exists: ‛Although the Court is hesitant to endorse a view that may encourage forum shopping, ... the plain language sets out an absolute one-year limit.“

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