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E.D. Va. Denies Remand in Diversity Case Removed More than 1 Year after Commencement of Action

Senior Judge Payne (E.D. Va.) recently issued an opinion in a case that was removed from state court based on diversity more than one year after the case was filed in state court, notwithstanding section 1446(b)'s seeming prohibition on such removals. His rationale was that 1446(b) only applies when the removed action was initially non-removable, and that in this case the action was initially removable based on diversity. Because the complaint was not served until more than one year after filing, and the defendants then removed the case within 30 days, the removal was proper and remand was denied. The case, Pair v. Welco-CGI Gas Technologies, Inc. may be downloaded at http://valawyersweekly.com/wp-files/pdf/010-3-554.pdf.

Full post as published by Federal Civil Practice Bulletin on October 31, 2010 (boomark / email).