Receipt by the defendant of amended pleading-motion

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Reference no: EM133812521

Question

Recall that $ 1446(b) permits removal upon "receipt by the defendant * 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 remov- able." This language is interpreted to include a voluntary dismissal by the plaintiff of the claim against the party that is thwarting removal. It does not apply to an involuntary dismissal (i.e., a dismissal ordered by the court, not undertaken by the plaintiff) of the claim against the party that is thwarting removal. Accordingly, in both situations, if Plaintiff voluntarily dismisses her claim against D-2, D-1 (the remaining defendant) may remove the case within 30 days after service of the voluntary dismissal upon her. But there is one possible complication. Suppose Plaintiff voluntarily dis- missed the claim against D-2 thirteen months after the case was filed in state court. Why is removal not proper? (See $ 1446(c)(1).) This result does not make much sense in light of the purpose of diversity jurisdiction. After the claim against D-2 is dismissed, D-1 is being sued in a state court in a state of which she is not a citizen. Despite her potentially rational fear of bias in state court, § 1446(c)(1) bars removal unless she can make a showing of what?

Reference no: EM133812521

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