United States District Court, S.D. Ohio, Eastern Division
LINDA M. DICKSON, Plaintiff,
THE TJX COMPANIES, INC., et al., Defendants.
Magistrate Judge, Kimberly A. Jolson
OPINION AND ORDER
A. SARGUS, JR. CHIEF IJNJTED STATES DISTRICT JUDGE
March 21, 2017, the United States Magistrate Judge issued a
Report and Recommendation [ECF No. 19] recommending that the
Court remand this case to state court for lack of
subject-matter jurisdiction. Defendants The TJX Companies,
Inc. and Dawn Jones have since objected to this
recommendation and requested an expedited ruling on their
Objections. For the reasons outlined below, Defendants'
Unopposed Motion for an Expedited Ruling [ECF No. 23] is
GRANTED, and Defendants' Objections [ECF No. 22] are
before the Court is Plaintiff Linda Dickson's Motion for
Leave to File a Second Amended Complaint [ECF No. 9], which,
as explained below, is GRANTED.
sued Defendants on July 15, 2016, in the Fairfield County
Court of Common Pleas. (Notice of Removal, at 1 [ECF No. 1].)
Plaintiff filed an Amended Complaint on September 28, 2016.
(Id.) Plaintiff did not assert any federal claims in
these filings. (See id.) On February 3, 2017,
Plaintiff moved for leave to file a Second Amended Complaint.
(Id. at 2.) The proposed Second Amended Complaint
includes claims of discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. (2nd Am. Compl. at 6-7 [ECF No. 1-1].) On March 1,
2017-before the state court ruled on Plaintiffs motion for
leave-Defendants filed a notice of removal to this Court.
(Notice of Removal at 4.)
filed their notice of removal before the state court had
ruled on Plaintiffs Motion for Leave because of their
uncertainty on how this Court would calculate the 30-day
removal period under 28 U.S.C. § 1446(b). (Objs. at 2
[ECF No. 22].) Section 1446(b) states that "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." Courts have split in their
interpretation of this section. Most courts have held
"that the thirty-day time frame for filing a notice of
removal begins to run either upon the granting of the motion
to amend or the actual filing of the amended complaint."
B &B Enters, of Wilson Cnty., LLC v. City of
Lebanon, 422 F.Supp.2d 903, 905 (M.D. Tenn. 2006). Under
this majority view, "the mere filing of the motion to
amend when there is no ability to amend as a matter of right
does not make an otherwise unremovable case removable."
Id. Other courts have held that the 30-day removal
period commences when the defendant first receives the motion
to amend. See, e.g., Webster v. Sunnyside Corp., 836
F.Supp. 629, 630 (S.D. Iowa 1993). Because this Court had not
yet clarified how it would determine the start of the removal
period, Defendants erred on the side of caution and removed
the case within 30 days of receiving Plaintiffs proposed
Second Amended Complaint. (See Objs. at 2.)
Report and Recommendation, the Magistrate Judge applied the
majority approach and concluded that the removal period had
not started given that the state court had not yet granted
Plaintiffs Motion for Leave to file a Second Amended
Complaint. (See Report & Rec. at 4 [ECF No.
19].) The Magistrate Judge explained mat at the time of
removal, the operative complaint was the Amended Complaint,
not the Second Amended Complaint. (Id.) And because
the Amended Complaint provides no basis for federal
jurisdiction, the Court should remand the case.
procedural background contains one last wrinkle. After
Defendants filed their notice of removal, the state court, on
March 10, 2017, filed an entry purporting to grant Plaintiffs
Motion for Leave to file her Second Amended Complaint. (State
Court Entry at 1 [ECF No. 14].) The Magistrate Judge
concluded that the state court's action did not remedy
this Court's lack of subject-matter jurisdiction. (Report
& Rec. at 4-5.) As she explained, "[b]ecause full
and exclusive subject-matter jurisdiction was acquired by
this Court upon removal on March 1, 2017, Plaintiffs pending
Motion for Leave to file a Second Amended Complaint... was
properly before this Court for a ruling, not the state
party objects within the allotted time to a report and
recommendation, 28 U.S.C. § 636(b)(1)(C) provides that a
district court "shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." See
also Fed. R. Civ. P. 72(b)(3); United States v.
Curtis, 237 F.3d 598, 602-03 (6th Cir. 2001). The
district court "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C);
see also Fed. R. Civ. P. 72(b)(3).
do not challenge the Magistrate Judge's determination
that their receipt of the proposed Second Amended Complaint
did not, without more, start the removal period. (Objs. at 3
[ECF No. 22].) Rather, Defendants argue that the Court should
reject the Magistrate Judge's recommendation because two
circumstances purportedly vest the Court with subject-matter
jurisdiction over Plaintiffs claims. First, Defendants
contend that the state court's order granting Plaintiffs
Motion for Leave to file her Second Amended Complaint has
remedied any jurisdictional defect that existed when the
notice of removal was filed. (See Id. at
3-4.) And second, Defendants assert that
considerations of finality, efficiency, and judicial economy
weigh against remand where, as here, there was supposedly no
question that the Motion for Leave would eventually be
granted. (See Id. at 3-5.)
existence of subject matter jurisdiction is determined by
examining the complaint as it existed at the time of
removal.'" Saunders v. Huron Cnty. Comm
'rs, No. 3:11 CV 2481, 2013 WL 1196438, at *1 (S.D.
Ohio Mar. 22, 2013) (quoting Harper v. AutoAlliance
Int'l, Inc., 392 F.3d 195, 210 (6th Cir. 2011)).
Assuming that the operative complaint at the time of removal
was the Amended Complaint, rather than the proposed Second
Amended Complaint, the Court agrees with the Magistrate Judge
that subject-matter jurisdiction over the case would be
to facilitate the efficient resolution of this case, and in
light of the fact that Plaintiff has not requested remand,
the Court will, for purposes of this case only, look to the
proposed Second Amended Complaint to determine the existence
of subject-matter jurisdiction at the time of removal. And
under that document, which pleads violations of federal law,
the Court had subject-matter jurisdiction ...