Tuesday, January 31, 2006

Delayed Nonsuit of Claim against Sole Non-Diverse Defendant Equitably Tolls 1-Year Period for Seeking Removal

Per Elsholtz v. Taser Intern., Inc., --- F.Supp.2d ----, 2006 WL 177621 (N.D. Tex. Jan. 05, 2006):

Plaintiff's motion to remand contends that removal was improper under 28 U.S.C. § 1446(b), which prohibits removal of a case founded upon diversity jurisdiction “more than 1 year after commencement of the action.” Plaintiff contends that the action was commenced on June 22, 2004, the date she filed her original complaint, and was not removed until August 1, 2005, more than one year after its commencement.Defendant does not dispute that it removed the case outside of the one-year period, but instead contends that the one-year period should be equitably tolled. The Fifth Circuit Court of Appeals has concluded that this one-year period is not jurisdictional but instead is subject to equitable exceptions. See Tedford v. Warner-Lambert Co., 327 F.3d 423, 426 (5th Cir.2003). TI contends that it is entitled to the benefit of equitable tolling due to the fact that Plaintiff failed to nonsuit the City, the only non-diverse defendant, until after the one-year period passed. The Court agrees.

Plaintiff did not join TI in the lawsuit until over four months after initially filing suit. Thereafter, Plaintiff repeatedly pressed for continuances of the hearing on the City's plea to jurisdiction, contending that discovery was necessary to determine the plea. Shortly before the fourth setting of the hearing, and after the one-year deadline for removal passed, Plaintiff nonsuited the City, the only non-diverse defendant. TI immediately removed the action to this Court. The Court concludes that these facts warrant equitably tolling the one-year period to permit TI's removal. See Shiver v. Sprintcom, Inc., 167 F.Supp.2d 962, 963 (S.D.Tex.2001) (refusing remand where defendant removed case outside of the one-year period when plaintiff nonsuited the only non-diverse defendant on the eve of trial), cited in Tedford, 327 F.3d at 426 n. 4. It is, therefore, ORDERED that Plaintiff's Motion to Remand is hereby DENIED.


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