The opinion of the court was delivered by: Phillips
This is an action by a plaintiff attorney with other individuals similarly situated in the state of Tennessee against two medical document reproduction companies to recover overcharges in connection with the production of medical record copies. The matter is before the court on plaintiffs' motion to remand [Docs. 5, 9]. Defendants have responded in opposition [Docs. 13, 15]. For the reasons that follow, plaintiffs' motion to remand is GRANTED.
The parties have filed extensive briefs pertaining to the motions in which they have fully briefed all of the issues. The court has reviewed the briefs and the record in this case and does not feel that oral argument is necessary. Therefore, defendant's motion for oral argument [Doc. 18] is DENIED.
Plaintiff, Joseph R. Ford and others similarly situated in the state of Tennessee, filed this complaint in Chancery Court for Knox County, Tennessee, on February 17, 2005. The complaint asserts a number of claims, which essentially argue that the defendants systematically and unlawfully over charged for copies of medical records. On March 21, 2005, defendant Smart Document timely removed the action to this court pursuant to 28 U.S.C. §§ 1332 and 1441 with Chart One's consent. Plaintiffs filed a motion to remand on May 13, 2005. On March 30, 2006, this court concluded that the defendants had failed to establish the requisite amount in controversy and entered an order granting plaintiffs' motion for remand. See Ford v. Smart Document Solutions, Civil Action No. 3:05-CV-155 [Doc. 23].
On August 16, 2007, plaintiffs moved the Chancery Court for Knox County for leave to file a second amended class action complaint, attaching a copy of the proposed amended pleading. The Chancery Court granted plaintiff's motion for leave to amend in a ruling from the bench on April 4, 2008. The Chancellor subsequently entered an order on April 22, 2008, granting the motion for leave to amend. Defendants removed this action a second time on May 21, 2008. Plaintiffs have filed a motion for remand, asserting that removal of this action to federal court was procedurally improper, because defendants removed the case beyond the 30-day limitations period prescribed by 28 U.S.C. § 1446.
In every case filed in or removed to federal court, the first and fundamental question is whether the federal court has jurisdiction to hear it. Douglas v. E.G. Baldwin & Assoc. Inc.,150 F.3d 604, 606-07 (6th Cir. 1998); Sutton v. Stolt-Nielsen Trans. Group, Ltd., 2004 U.S. Dist. LEXIS 17098 (E.D.Tenn. May 27, 2004). Because this court is one of limited jurisdiction, its first responsibility is to determine whether jurisdiction exists.
The question before this court centers on the interpretation of the second paragraph of 28 U.S.C. § 1446(b). Under § 1446(b), the notice of removal of a civil action or proceeding must be filed within thirty days after the receipt by defendants, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. See 28 U.S.C. § 1446(b). If the claim alleged in the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. Id. The time limit in 28 U.S.C. § 1446(b) is mandatory and must be strictly applied. See Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302 (M.D.Ala. 2003); Martin v. Monarch Life Ins. Co., 1995 WL 127163 (M.D.Fla. 1995). Coupled with the mandatory nature of the time limitations is the fact that the removal statute, and compliance therewith, must be strictly construed in favor of state court jurisdiction and against removal. Id. (citing Production Stamping Corp. v. Maryland Casualty Co., 829 F.Supp. 1074 (E.D.Wis. 1993)).
The key for determining the date from which the removal clock begins to run is when the defendants are able to "intelligently ascertain removability." Ardison v. Villa, 248 F.2d 226, 227 (10th Cir. 1957). The term, "ascertain" has been defined to mean "to find out or learn with certainty." DeBry v. Transamerica Corp., 601 F.2d 4800, 489 (10th Cir. 1999). Accordingly, the issue is -- when did defendants learn with certainty that the case had become, in their view, removable? There are three pertinent dates to which the court may look to determine the "trigger" date for defendants' thirty-day removal period, only the latter date can save defendants' removal from being untimely. The court must determine whether the thirty-day period begins to run upon the receipt of the motion to amend the complaint, the granting of the motion by the Chancery Court, or the actual filing of the order memorializing the court's oral ruling.
Plaintiffs first contend that defendants, contrary to § 1446(b) failed to remove the action within thirty days of receiving their motion for leave to amend and proposed second amended class action complaint in August 2007. As plaintiffs point out, a minority of courts have held that a plaintiff's delivery of a motion to amend his complaint triggers § 1446(b)'s thirty-day limitations' period. See, e.g., Harriman v. Liberian Maritime Corp., 204 F.Supp. 205, 206-07 (D.Mass. 1962); Webster v. Sunnyside Corp., 836 F.Supp. 629, 630-31 (S.D.Iowa 1993); Williams v. Heritage Operating, L.P., 2007 WL 2729652 (D.Fla. 2007). Plaintiffs argue that defendants' removal of the action was nine months late under this minority view.
However, plaintiffs' position is inconsistent with Tennessee's rules governing amendments to pleadings. Rule 15 of the Tennessee Rules of Civil Procedure provides that "a party may amend the party's pleadings once as a matter of course at any time before a responsive pleading is served . . . otherwise a party may amend the party's pleadings only by written consent of the adverse party or by leave of court. Thus, a party seeking to amend his complaint for a second time must -- as a prerequisite -- obtain leave of court to do so. It necessarily follows that, unless and until the trial court grants the motion, a seconded amended complaint may not be officially filed with the court.
As defendants correctly assert, had the Chancery Court not granted plaintiffs' motion to amend complaint, which motion defendants contested, defendants would not have had a basis to remove the action to federal court. Indeed, most courts have rejected the minority view, and have held that § 1446(b)'s thirty-days limitations' period "commences upon either the granting of the motion to amend or the actual filing of the amended complaint." Douklias v. Teacher's Ins. & Ann. Ass'n, 35 F.Supp.2d 612 (W.D.Tenn. 1999); B&B Enterprises of Wilson County v. City of Lebanon,442 F.Supp.2d 903 (M.D.Tenn. 2006); Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998); Owings v. Deere & Co., 441 F.Supp.2d 1101 (S.D.Iowa 2006); Crump v. Wal-Mart Group Health Plan, 925 F.Supp. 1214 (W.D.Ky. 1996); Bolden v. McMillin, 2006 WL 3694599 (S.D.Miss. 2006). As those courts have aptly reasoned, "the mere filing of the motion to amend when there is no ability to amend as a matter of right does not make the case removable" because the possibility remains that the court may, in its discretion, deny the motion. Id. Finding this reasoning persuasive, the court rejects the minority approach, and thus, rejects plaintiffs' contention that § 1446(b) required defendants to file their notice of removal upon being served with plaintiff's motion to amend the complaint.
Next, plaintiffs contend that defendants, contrary to § 1446(b), failed to remove the action within thirty days of the Chancellor granting plaintiffs' motion from the bench on April 4, 2008. Several courts adopting the majority approach have held that § 1446(b)'s thirty-day limitations period commences upon the court simply granting the motion to amend the complaint. See Sullivan, 157 F.3d 1092. ...