Filed: Mar. 05, 2015
Latest Update: Mar. 05, 2015
Summary: OPINION AND ORDER MELINDA HARMON , District Judge . Pending before the Court in the above referenced cause, alleging underpayment of a damage claim under a property insurance policy after a storm in Alvin, Texas, is Plaintiff Charles Van Tassel's motion to delay consideration (instrument #12) of Defendant State Farm Lloyds' pending motion for summary judgment (#7) and to rule first on Plaintiff's third motion to remand under 28 U.S.C. 1446(c)(1) 1 on the grounds that the third removal o
Summary: OPINION AND ORDER MELINDA HARMON , District Judge . Pending before the Court in the above referenced cause, alleging underpayment of a damage claim under a property insurance policy after a storm in Alvin, Texas, is Plaintiff Charles Van Tassel's motion to delay consideration (instrument #12) of Defendant State Farm Lloyds' pending motion for summary judgment (#7) and to rule first on Plaintiff's third motion to remand under 28 U.S.C. 1446(c)(1) 1 on the grounds that the third removal of..
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OPINION AND ORDER
MELINDA HARMON, District Judge.
Pending before the Court in the above referenced cause, alleging underpayment of a damage claim under a property insurance policy after a storm in Alvin, Texas, is Plaintiff Charles Van Tassel's motion to delay consideration (instrument #12) of Defendant State Farm Lloyds' pending motion for summary judgment (#7) and to rule first on Plaintiff's third motion to remand under 28 U.S.C. § 1446(c)(1)1 on the grounds that the third removal of this action occurred more than one year after the suit was filed. Van Tassel claims that "a court should consider subject matter jurisdiction before it addresses an attack on the merits."2
In response in opposition and while insisting that it did remove this case in a timely fashion, State Farm Lloyds argues the motion to delay should be denied because Plaintiff's untimely third motion to remand does not raise any issue about subject matter jurisdiction, but instead argues that the removal was procedurally deficient under § 1447(c).3 Section 1447(c) states,
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice or removal under section 1446(a).
State Farm Lloyds timely removed this suit on October 8, 2014 pursuant to diversity jurisdiction, arguing that Defendant adjuster Andre Hutchins was improperly joined. #1 (Notice of Removal). Plaintiff did not file his motion to remand until January 22, 2015, one hundred and six days later. #8. If a plaintiff fails to timely object to a procedural defect, such as untimely removal, he waives his right to remand on that ground. Coury v. Prot, 85 F.3d 244, 252 (5th Cir. 1996). Because the failure to remove timely is a procedural, not a jurisdictional, defect, a motion to remand must be filed within 30 days of the filing of the notice of removal. In re Shell Oil Co., 932 F.2d 1518, 1523 (5th Cir. 1991), cert. denied sub nom. Acuna Castillo v. Shell Oil Co., 502 U.S. 1049 (1993); Howard v. Northwest Airlines, Inc., 793 F.Supp. 129, 131 (S.D. Tex. 1992). Failure to file such a timely motion may result in waiver of the plaintiff's right to object to the removal on that ground. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir. 1992); Besler v. St. Paul Fire & Marine Ins., 965 F.2d 5, 8 (5th Cir. 1992)(If a plaintiff does not timely object to a defendant's untimely notice of removal, the plaintiff has waived its right to remand on that ground.). Thus the Court should not defer consideration of State Farm Lloyd's motion for summary judgment on limitations grounds because Plaintiff's motion to remand does not address or challenge subject matter jurisdiction.
The Court agrees with State Farm Lloyds and accordingly
ORDERS that Plaintiff's motion to delay consideration of State Farm Lloyd's motion for summary judgment is DENIED.
