home.lbl.gov:8080/~psb/Humor/Noble-v-BradfordMarine
ORDER OF REMAND This matter comes before the court sua sponte. After an extreme close-up review of the record and excellent authorities, the court enters the following order. Hurling Chunks On October 11, 1988, while berthed at the facilities of BRADFORD MARINE, INC. The blaze hurled chunks of flaming debris to other vessels, destroying those owned by LYN C NOBLE ("NOBLE") and ROBERT C MUIR ("MUIR"). Thereafter, NOBEL and MUIR commenced, on June 7, 1989, and July 15, 1989, respectively, separate actions in the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida.
TIME as a new party, that Defendant, on May 9, 1990, removed the proceeding to federal court, claiming original jurisdiction insofar as the Plaintiff's causes of action or rights arose under the Article III, Section II of the United States Constitution. n1 PRIME TIME asserted that removal was timely because it came within thirty days of service of the Amended Complaint. Similarly, the MUIR action was also removed after that Plaintiff amended his Complaint so as to add PRIME TIME as a Defendant. Upon BRADFORD's objection, this court, by Order dated June 28, 1990, remanded the NOBLE action to the state court for the failure of all Defendants to join in the removal. On August 31, 1990, in accordance with Rule 6 of the General Rules of the Southern District of Florida, n2 the MUIR suit was transferred to the undersigned. Thereafter, PRIME TIME filed a Supplemental Notice of Removal (DE 2), bearing both the NOBLE and MUIR captions, attempting to effect a phoenix-like ascent to federal court through the MUIR proceeding.
sponte whether its subject matter jurisdiction has been properly invoked. See 14A Charles A Wright, Arthur R Miller & Edward H Cooper, Federal Practice and Procedure @ 3721 (2d ed.
If the case, as stated by the initial pleading, is not removable, removal may be effected within thirty days after receipt or otherwise, of a copy of an amended pleading from which it may be ascertained that the case is removable.
and strictly construed in accordance with Rule 6 of the Federal Rules of Civil Procedure, the failure to comply with time requirement of Section 1446 is a defect causing "improvident" removal. The addition of a new Defendant in an Amended Complaint, however, does not start the time for removal anew when the original Complaint itself was removable. Unless the amendment sets forth a new basis of federal jurisdiction, subsequent events do not make a removable case "more removable" or "again removable."
Thus, the failure of initial Defendants to remove during the original thirty day time period is deemed a waiver of the right of removal which is binding on subsequently added Defendants. A Schwing and a Miss Because of the court's admiralty jurisdiction, MUIR's original Complaint, like his Amended Complaint, provided BRADFORD with a basis for removal. As a result, PRIME TIME's removal, almost ten months after MUIR commenced suit, is untimely and is a defect deemed "way" improvident. For similar reasons, the court finds that removal of the NOBLE case, which had been remanded, was also untimely.
|
http://csua.com/feed/