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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
Case No. CIV-13-183-RAW
RAYMOND JORDAN and JANIE )
JERRY LYNN LOWERY, et al.,
Before the Court is the motion of the plaintiffs to remand. Plaintiffs, who are
Oklahoma residents, filed this action on September 28, 2011, in the District Court of
Okfuskee County, alleging negligence in a vehicular accident. The petition concludes by
expressly requesting judgment in an amount less than $75,000.00, plus costs and interest.
A notice of removal was filed in this court on April 24, 2013. In that document,
defendants assert that on April 12, 2013, plaintiffs’ counsel wrote to defense counsel, making
a settlement offer in the amount of $100,000 for each of the plaintiffs’ respective claims.
Defendants contend that this qualifies as an “other paper” from which they first ascertained
the case was removable, and thus the notice of removal was timely filed. See 28 U.S.C.
Plaintiffs then filed the present motion, asserting the action should be remanded.
Plaintiffs seek an award of fees and costs as well. The motion is based upon the former 28
U.S.C. §1446(b), which provided that diversity-based cases could not be removed after one
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year had elapsed since the case commenced.1 Defendants acknowledge that federal
jurisdiction in this case is based upon diversity of citizenship and that more than one year
passed between the filing of the state court petition and the notice of removal. In the notice
of removal, defendant implicitly rely upon the present version of §1446(c)(1), which now
provides for a “bad faith exception” to the one-year time limit. The notice of removal also
explicitly cites the present §1446(c)(3)(B), which provides that “[i]f the notice of removal
is filed more than 1 year after commencement of the action and the district court finds that
the plaintiff deliberately failed to disclose the actual amount in controversy to prevent
removal, that finding shall be deemed bad faith under paragraph (1).”
Both the bad faith exception and §1446(c)(3)(B) are recently enacted and were part
of the Federal Courts Jurisdiction and Venue Clarification Act (“the Act”). The amendments
apply to any action commenced on or after the effective date of the Act, i.e., January 6, 2012.
See Richfield Hospitality Inc. v. Charter One Hotels and Resorts, Inc., 2013 WL 561256
(D.Colo.2013). The date of commencement is determined by State law. Id. Under
Oklahoma law, this case was commenced when the state court petition was filed. See 12
O.S. §2003. Therefore, the statutory bad faith exception to the one-year bar is not applicable
Defendants acknowledge all this, but nevertheless argue that even under pre-Act law,
courts had the equitable authority to allow removal and to deny a motion to remand where
1The one-year bar to removal is now codified in 28 U.S.C. §1446(c)(1).
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the one-year period had expired. So far as it goes, this statement is correct.2 Cases within
the Tenth Circuit, however, do not appear to have adopted this position. Federal removal
jurisdiction is statutory in nature and is to be strictly construed. Caudill v. Ford Motor Co.,
271 F.Supp.2d 1324, 1327 (N.D.Okla.2003). There is a presumption against removal
jurisdiction and doubtful cases must be resolved in favor of remand. Id. Although some
courts have applied the principle of equitable tolling to permit removal beyond the one-year
deadline, “courts in the Tenth Circuit have strictly construed the removal statute and have
not allowed an equitable exception.” Jackman v. Select Specialty-Hospital-Kansas City, Inc.,
2009 WL 3672509, *3 n.13 (D.Kan.2009). The Tenth Circuit has not addressed the issue.
Plaintiffs’ motion to remand extends for fifteen pages, arguing in detail that their
conduct has not been in bad faith.3 Essentially, their position is that in the discovery process
“facts were developed which caused Plaintiffs’ counsel to believe it was necessary to seek
punitive damages in the case. Consequently, the Plaintiffs added a claim for punitive
damages on the proposed Pre-Trial Conference Order.” (Motion at 5).4 This court merely
2This alone is sufficient to deny plaintiffs’ request for costs and fees.
3This court makes no finding on the presence or absence of bad faith. Such a finding would likely
require an evidentiary hearing. The court finds, under the law applicable to the case at bar, the one-year
limitation is an absolute bar. Therefore, the issue is irrelevant. Addressing pre-Act law, one treatise
observes: “Despite the clear tactical motivation underlying some plaintiffs’ conduct, most federal courts
nonetheless have applied the statute’s time limit literally, as if it were a statute of limitations.” 14C Wright,
Miller, Cooper & Steinman, Federal Practice and Procedure, §3731 at 607 (4th ed.2009).
4This court would not permit a plaintiff to add a claim for punitive damages to a proposed Pretrial
Order over objection when no amended complaint had ever been filed, but of course this is a decision for the
state court judge. Cf. Boatsman v. Southwestern Bell Yellow Pages, Inc., 30 P.3d 1174, 1178
(Okla.Civ.App.2001)(affirming such an addition on the day of trial when the punitive damages claim was
“raised in the initial pleadings, but apparently, inadvertently omitted from the pre-trial order.”).
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finds that under the present record and applicable law, the motion to remand should be
It is the order of the court that the motion of the plaintiffs to remand (#9) is hereby
GRANTED. Pursuant to 28 U.S.C. §1447(c), this action is remanded to the District Court
of Okfuskee County, State of Oklahoma. Plaintiffs’ request for fees and costs is DENIED.
ORDERED THIS 10th DAY OF JULY, 2013.
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE