Academic journal article Washington and Lee Law Review

Are Rules Just Meant to Be Broken? the One-Year Two-Step in Tedford V. Warner-Lambert Co

Academic journal article Washington and Lee Law Review

Are Rules Just Meant to Be Broken? the One-Year Two-Step in Tedford V. Warner-Lambert Co

Article excerpt

I. Introduction

Federal law allows for the removal from state court to federal court of any case that originally would have qualified for federal jurisdiction,1 either by federal question2 or diversity3 jurisdiction. The general removal statute sets forth various time frames and deadlines for when a party must notice removal.4 One of these time limits states that "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action."5 Section 1332 defines diversity jurisdiction.6 Thus, the one-year provision of 28 U.S.C. § 1446(b) (§ 1446(b)) seems to mandate that, if the sole basis for federal jurisdiction is diversity of citizenship, a defendant may not remove more than one year after the commencement of the case.7

This one-year time limit allows a plaintiff to engage in manipulative gamesmanship in order to defeat removal. Consider the following hypothetical: Plaintiff from State X gets into a car accident within the borders of State X with Defendant, a resident of State Y. Plaintiff suffers serious physical injury and wants to sue Defendant solely under a state-law tort claim for $100,000. Because the two parties have diverse citizenship and the amount in controversy is greater than $75,000, the case qualifies for federal diversity jurisdiction.8 If Plaintiff files the suit "as is" in the courts of State X, Defendant may remove the case to federal district court in State X.9 Plaintiff is fully aware of this procedure and wants to remain in state court. Thus, Plaintiff finds some way to join10 a defendant from State X-perhaps the owner of the car that the defendant was driving at the time of the accident-in the suit, which destroys the complete diversity necessary for removal.11 In reality, Plaintiff does not really want to pursue the claim against the nondiverse defendant and is keeping her in the suit merely to wreck diversity and prevent removal. Then, after a year has passed from the filing of the suit, Plaintiff settles with or otherwise drops the nondiverse defendant from the action. Once again, complete diversity exists, but a year has passed and the removal statute seems to foreclose the remaining defendant from gaining access to the federal courts.

The plaintiffs actions are clearly manipulative and the situation is arguably unfair for the remaining defendant.12 The remaining defendant is stuck in state court and still may want to get into the federal forum.13 The question remains, however, whether, in the face of such manipulative action by the plaintiff, the defendant should still have access to the federal courts after a year has passed. Stated differently, should the courts apply some form of equitable exception to the one-year time limit in the event that the plaintiff manipulatively acts only to defeat removal?

This situation and resulting question arose in Tedfordv. Warner-Lambert Co.14 In fact, this question has surfaced many times before Tedford, with some district courts allowing removal and others refusing to allow removal after a year has passed.15 The Tedford court, however, was the first circuit court of appeals to directly address the issue,16 and concluded that the time limit is subject to an equitable exception in the face of manipulative conduct.17 In almost all cases, the central debate is whether to adhere strictly to the language of the removal statute or to negate a plaintiffs gamesmanship by recognizing an equitable exception to the time limit.18

The plaintiff in Tedford initially filed a products liability suit with another plaintiff, but the state court severed the two claims.19 After the severance, the defendant notified the plaintiff that it intended to remove the case to federal court on the basis of diversity.20 Three hours later, the plaintiff amended her complaint to join her doctor as a defendant, which destroyed complete diversity.21 Some time later, the plaintiff signed and postdated a Notice of Nonsuit against the doctor, but did not file it until after the one-year mark. …

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