UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


DIANNA MAE SAVILLA, as                   
Administratrix of the Estate of
Linda Sue Good Kannaird,
deceased,
                   Plaintiff-Appellee,
                  v.
SPEEDWAY SUPERAMERICA, LLC, a                     No. 02-2364
Delaware Corporation, d/b/a Rich
Oil Company; CITY OF CHARLESTON,
a municipality; CHARLESTON FIRE
DEPARTMENT; BRUCE GENTRY; ROB
WARNER,
              Defendants-Appellants.
                                         
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Joseph Robert Goodwin, District Judge.
                         (CA-02-1004-2)

                   Submitted: November 28, 2003

                       Decided: January 22, 2004

  Before WILKINS, Chief Judge, TRAXLER, Circuit Judge, and
Richard D. BENNETT, United States District Judge for the District
              of Maryland, sitting by designation.



Vacated and remanded by unpublished per curiam opinion.
2                 SAVILLA v. SPEEDWAY SUPERAMERICA
                              COUNSEL

Jeffrey K. Phillips, Ancil G. Ramey, STEPTOE & JOHNSON, PLLC,
Charleston, West Virginia, for Appellants City of Charleston,
Charleston Fire Department, Bruce Gentry, and Rob Warner; Joseph
S. Beeson, David L. Yaussy, Keith J. George, Robert P. George,
ROBINSON & McELWEE, PLLC, Charleston, West Virginia, for
Appellant Speedway SuperAmerica, LLC. Margaret L. Workman,
MARGARET WORKMAN LAW, Charleston, West Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Speedway SuperAmerica, LLC, the City of Charleston, the
Charleston Fire Department, Bruce Gentry, and Rob Warner (collec-
tively, "Appellants") appeal a district court order remanding Dianna
Mae Savilla’s claims to the Circuit Court of Kanawha County, West
Virginia. Appellants contend that the district court erred in determin-
ing that the notice of removal was premature. Because we agree, we
vacate the order and remand.

                                   I.

   Savilla, as the administratrix of the estate of Linda Kannaird, filed
suit against Appellants in the Circuit Court of Kanawha County on
April 11, 2000 for events that allegedly caused Kannaird’s death on
February 18, 2000. On July 31, 2002, Savilla filed a motion to amend
her complaint "to add an additional claim . . . wherein Plaintiff asserts
that her constitutional rights of equal protection and due process have
been violated." J.A. 18. She further characterized these constitutional
rights as deriving in part from "the Fourteenth Amendment to the
                  SAVILLA v. SPEEDWAY SUPERAMERICA                     3
United States Constitution, as enforced by 42 U.S.C. § 1983." 

addition to the motion, Savilla filed an accompanying docu-
ment styled "Second Amended Complaint." 

filing also
referred to both federal law and the federal constitution. The docu-
ment is signed by counsel and bears both a "FILED" stamp dated July
31, 2002 and the initials of a clerk of the circuit court. 

documents were served on Appellants’ counsel.

   On August 7, 2002, the Kanawha County Circuit Court granted
Savilla’s motion to file the Second Amended Complaint. The order
stated that Appellants’ counsel were authorized to accept service on
their clients’ behalf and that Appellants had 30 days within which to
file motions to dismiss. Later that same day, Appellants filed a notice
of removal pursuant to 28 U.S.C.A. §§ 1441, 1443, 1446 (West 1994
& Supp. 2003), asserting federal question jurisdiction under 28
U.S.C.A. §§ 1331, 1343 (West 1993).

   Two weeks after the removal of the case to the district court,
Savilla moved to remand the matter back to the state court, claiming
that no complaint asserting a federal question had ever been filed. On
November 7, 2002, without a hearing, the district court concluded that
removal was premature because, at the time the notice of removal was
filed, the state court had only granted leave to amend the complaint,
and no amended complaint had been filed. Based on this conclusion,
the district court remanded the case to the state court.

                                   II.

   Appellants contend that the district court erred in determining that
the case was not removable at the time Appellants filed their notice
of removal. The parties disagree regarding whether we should review
the district court ruling de novo or for clear error. We need not
resolve this dispute, however, because the district court ruling cannot
survive even under the more deferential standard.

  Subject to exceptions not relevant here, a defendant may remove
an action from a state court to a federal court when the action could
have originally been brought in federal court. See 28 U.S.C.A. § 1441.
4                 SAVILLA v. SPEEDWAY SUPERAMERICA
       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 an amended plead-
    ing, motion, order or other paper from which it may first be
    ascertained that the case is one which is or has become
    removable . . . .

28 U.S.C.A. § 1446(b).

   Here, the record establishes that Savilla filed the Second Amended
Complaint on July 31, 2002. The Second Amended Complaint was
stamped as "FILED" in the Kanawha County Circuit Court on July
31, 2002, and the state court docket sheet reflects the filing of the
Second Amended Complaint on that date. The record further reflects
that the Second Amended Complaint was served on Appellants’ coun-
sel that same day. Thus, when the state court granted Savilla leave to
file the Second Amended Complaint on August 7, 2002, that order
operated to amend the complaint. Cf. Smith v. Ins. Co. of N. Am., 

, 542 (M.D. Tenn. 1962) (interpreting Fed. R. Civ. P.
15(a), which is identical to the West Virginia rule applicable here, and
holding that when proposed amendments were served on the opposing
party, a court order allowing the amendments operated to amend the
pleadings; no further action by the party granted leave to amend was
required). And, the order granting Savilla leave to file the Second
Amended Complaint reflects that. See J.A. 41 (stating that Appellants
"do not concede that [Savilla] has pled a cognizable claim as the
defendants expressly deny the claims set forth in the Second Amended
Complaint (emphasis added)); 

days in which
to respond to the Second Amended Complaint and not discussing any
further action required of Savilla).

   Because Appellants’ notice of removal was filed after Savilla’s
complaint was amended to include federal civil rights claims, removal
was proper under 28 U.S.C.A. § 1446(b) and was not premature. We
therefore vacate the order of the district court remanding Savilla’s
claims to state court, and we remand for further proceedings.*

  *Savilla argues that the document entitled "Second Amended Com-
plaint" was not in fact an amended complaint, but rather merely a "draft"
                  SAVILLA v. SPEEDWAY SUPERAMERICA                       5
                                         VACATED AND REMANDED

complaint that was included with her motion seeking leave to amend. Br.
of Appellee at 5. However, the record clearly refutes that proposition.
The Second Amended Complaint was not identified as a "draft" in any
way. Indeed, Savilla’s counsel signed it.
   Savilla also maintains that removal was improper in light of the statu-
tory prohibition against removal "more than 1 year after commencement
of the action," 28 U.S.C.A. § 1446(b). This limitation applies only in
diversity cases, however; removal here was based on federal question
jurisdiction and on the fact that the amended complaint alleged that Kan-
naird’s civil rights were violated, see 28 U.S.C.A. §§ 1331, 1343, 1443.
  Finally, Savilla contends that we should affirm the remand order
because this suit raises mostly state law claims. This suggestion ignores
the fact that federal district courts have supplemental jurisdiction over
cases that include state law claims that are intertwined with federal ones.
See 28 U.S.C.A. § 1367 (West 1993).