Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mark D. Lee, et al. v. Smith & Wesson Corp

October 24, 2011

MARK D. LEE, ET AL.
PLAINTIFFS,
v.
SMITH & WESSON CORP., DEFENDANTS.



The opinion of the court was delivered by: Judge Dan Aaron Polster

MEMORANDUM OF OPINION AND ORDER

Two motions are pending before the Court: Plaintiffs' Motion for Remand (Doc. # 8); and Defendant's Motion for Costs and Stay (Doc. # 5) pursuant to Rule 41(d) of the Federal Rules of Civil Procedure.

I. Procedural Posture

On November 4, 2008, Plaintiffs filed a products liability action against Defendant in the Court of Common Pleas of Richland County, Ohio. The complaint alleged Mark D. Lee was injured when he fired a revolver manufactured by Smith & Wesson: the cylinder of the gun swung open and the blast from the shot knocked off Lee's safety glasses and caused permanent injuries to his face, including his nose and one eye. (Doc. # 5-2).

On August 6, 2010, in anticipation of trial, Defendant filed a motion to strike and preclude the testimony of Plaintiff's expert witness, Richard Ernest, who was expected to testify that the revolver was defective. (Doc. # 5-4; 5-5). Plaintiffs did not respond to Defendant's motion. Instead, on August 16, 2010, three weeks before trial, they hired new counsel and filed a voluntary dismissal without prejudice pursuant to Rule 41(A) of the Ohio Rules of Civil Procedure. (Doc. # 5-6; 5-7).

On August 15, 2011, apparently one day before the expiration of the statute of limitations, Plaintiffs re-filed the products liability action against Defendant in the Court of Common Pleas of Cuyahoga County, again alleging Lee was injured as a result of a defect in the revolver. (Doc. # 1-1). Defendant was served with the summons and complaint on August 29. (Doc. # 1, ¶ 13). Defendant then removed the case to this Court on September 14 on the basis of diversity jurisdiction, under 28 U.S.C. § 1332. (Doc. # 1).*fn1 Defendant filed a copy of the notice of removal with the Cuyahoga County court on October 7. (Doc. # 10-2).

II. Plaintiffs' Motion for Remand

Plaintiffs' motion for remand was filed in this Court on October 6. (Doc. # 8). The basis of the motion is that Defendant failed to fulfill the procedural requirements for removal by not promptly filing a copy of the notice of removal with the Cuyahoga County court. Defendant did file the notice of removal with the Cuyahoga County court, albeit on October 7, one day after Plaintiffs filed their motion for remand. (Doc. # 10).

After filing a notice of removal in federal court, a defendant must "[p]romptly...give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court...." 28 U.S.C. § 1446(d). The state court's jurisdiction is terminated when it receives a copy of the notice of removal. Schliewe v. Toro, 138 Fed. Appx. 715, 720 (6th Cir. 2005). Until a defendant notifies the state court of removal, the defendant creates concurrent jurisdiction over the case in both the state and federal courts. Id.

In this case, Defendant filed a copy of the notice of removal with the Cuyahoga County court 23 days after filing a notice of removal in this Court. The issue, then, is whether 23 days constitutes prompt notification under 28 U.S.C. § 1446(d).

Several courts have addressed the issue of what is prompt notification. One court found that a 22-day delay did not violate the prompt filing requirement. Nixon v. Wheatley, 368 F. Supp. 2d 635, 640 (E.D. Tex. 2005). Another found that a delay of one month was satisfactory.

Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246, 246--47 (S.D.N.Y. 2000). See also Patterson v. State Farm Mut. Auto. Ins. Co., 2009 U.S. Dist. LEXIS 43192 (N.D. Okla. 2009) (declining to remand where defendant's delay was 30 days). Even a delay of as much as six months did not require remand. Whitney v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 17437 (D. Me. 2004). On the other hand, Judge O'Malley recently found that a delay of eight months did require remand. Mlotek v. Mlotek, 2011 U.S. Dist. LEXIS 13828 (N.D. Ohio 2011).

This case clearly falls within the range of acceptable delay. The Court therefore finds that a delay of 23 days between filing a notice of removal in federal court and filing a copy of that notice with the state court is prompt enough to satisfy the requirements under 28 U.S.C. § 1446(d).

Even though Plaintiffs acknowledge that courts have held that a delay of as much as one month does not necessitate remand, Plaintiffs nonetheless argue, "in a case like this, where Defendant has aggressively sought payment of costs from Plaintiffs and dismissal of this case, while still requiring Plaintiffs to fight this case on two fronts due to their own ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.