Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARY M. COLLINS, Individually and as Personal Representative of the Heirs and Estate of JAMES DANIEL COLLINS, Deceased, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY; ET AL., Defendants. : : : : : : : : : : : : : Case No. 07-CV-149

(Removed on March 14, 2007, from the Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 06C-02281-ASB)

PLAINTIFF'S REPLY BRIEF IN SUPPORT OF MOTION TO REMAND

WEISS & SAVILLE, P.A. Yvonne Takvorian Saville, SB No. 3430 1220 North Market Street, Suite 604 P.O. Box 370 Wilmington, DE 19899 Phone: 302/656-0400 Fax: 302/656-5011 BARON & BUDD, P.C. The Centrum, Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 Phone: 214/521-3605 Fax: 214/520-1181 Attorneys for Plaintiffs

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TABLE OF CONTENTS Page No(s). INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. ARGUMENT AND AUTHORITIES IN REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Conditional Transfer Order to the Multi District Litigation Does Not Affect the Ability of this Court to Remand this Case to State Court. . . . . . . . 1 Plaintiff Has Not Acted in Bad Faith or Attempted to Improperly Manipulate the Judicial System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Defendant's Arguments Regarding Personal Jurisdiction and Forum Selection Are Simply Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 This Case Should Be Remanded Because it Has Progressed Substantially in the Delaware State Court and Removal at this Point in the Case Would Be Disruptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 This Case Should Be Remanded Because the Notice of Removal Was Filed More than One Year after the Commencement of the Lawsuit . . . . . . . . . . 6 1. 2. Delaware State Law Determines the Date of Commencement . . . . . . . . . 6 Under Applicable Law, the Date of Commencement Is the Initial Date of Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 a. The Relation Back Doctrine Does Not Apply in the Removal Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Congress Expressed No Intent to Allow the Loophole Defendant Encourages this Court to Create . . . . . . . . . . . . . . . . . 10

B.

C.

D.

E.

b.

3. F.

The One Year Period Is Mandatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Removal Should Not Be Permitted to Stand on an Equitable Exception That Does Not Exist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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INDEX OF AUTHORITIES Cases Page(s)

Ariel Land Owners, Inc. v. Dring, 351 F.3d 611 (3rd Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 11 Asbury-Castro v. GlaxoSmithKline, Inc., 352 F.Supp. 2d 729 (N.D.W.Va. 2005) . . . . . . . . . . . 2 Blue v. Equifax Information Services, LLC, Slip Copy, 2007 WL 602295 (N.D.Cal.2007) . . . 13 Braud v. Transport Serv. Co. of Ill., 445 F.3d 801 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 9 Chaplake Holdings, LTD. v. Chrysler Corp., 766 A.2d 1 (Del.Supr. 2001) . . . . . . . . . . . . . . . . 7 Connell v. Delaware Aircraft Ind., 55 A.2d 637 (Del.Supr.1947) . . . . . . . . . . . . . . . . . . . . . . . 7 In re Expedia Hotel Taxes & Fees Litigation, 377 F.Supp. 2d 904 (W.D.Wash.2005) . . . . . . . 7 General Electric Co. v. Byrne, 611 F.2d 670 (7th Cir.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Haywood v. Tribeca Lending Corp., No. Civ.A.2:06CV108-P-A, 2006 WL 2708578 (N.D.Miss. Sept. 20, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Ill. Municipal Retirement Fund v. Citigroup, Inc., 391 F.3d 844 (7th Cir. 2004) . . . . . . . . . . 2, 3 Kite v. Richard Wolf Medical Instruments Corp., 761 F.Supp. 597 (S.D.Ind.1989) . . . . . . . . . . 6 In re Mass. Diet Drug Litigation, 338 F.Supp. 2d 198 (D.Mass. 2004) . . . . . . . . . . . . . . . . . . . 2 Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 WL 317557 (Del.Supr. Apr. 15, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 O'Brien v. Powerforce, Inc., 939 F.Supp. 774 (D.Haw. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Perez v. General Packer, Inc., 790 F.Supp. 1464 (C.D.Cal.1992) . . . . . . . . . . . . . . . . . . . . . . . 6 Pierson v. Scott, No. C 06-6503 PJH, 2007 WL 160924 (N.D.Cal. Jan. 17, 2007) . . . . . . . . . . . 9 Progressive West Insurance Co. v. Preciado, 479 F.3d 1014 (9th Cir. 2007) . . . . . . . . . . . . . . 9 Provenza ex rel. Provenza v. Yamaha Motor Co., Ltd, 295 F.Supp. 2d 1175 (D.Nev. 2003) . . . 7 Robinson v. Ruiz, 772 F.Supp. 212 (D.Del. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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INDEX OF AUTHORITIES, Con't.

Sasser v. Ford Motor Co., 126 F.Supp. 2d 1333 (M.D. Ala.2001) . . . . . . . . . . . . . . . . . . . . . . 11 Saunders v. Wire Rope Corp., 777 F.Supp. 1281 (E.D.Va.1991) . . . . . . . . . . . . . . . . . . . . . . . . 7 Schott v. Hechinger Co., No. Civ.A.96C-06-012, 1997 WL 358306 (Del.Super. March 20, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sledz v. Flintkote Co., 209 F.Supp. 2d 559 (D.Md. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11 Taylor v. LSI Logic Corp., No.13915, 1998 WL 51742 (Del.Ch. Feb. 3, 1998) . . . . . . . . . . . . . . 7 Zumas v. Owens-Corning Fiberglas Corp., 907 F.Supp. 131 (D.Md. 1995) . . . . . . . . . . . . . . . 6

Statutes and Rules 28 U.S.C. 1446(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Del. Sup.Ct. Civil Rule 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Secondary Source Miller & Cooper, Fed. Prac. & Proc. § 3732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

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PLAINTIFF'S REPLY BRIEF IN SUPPORT OF MOTION TO REMAND

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: COMES NOW MARY M. COLLINS, acting Individually and as Personal Representative of the Heirs of the ESTATE OF JAMES DANIEL COLLINS, Deceased ("Plaintiff"), and files this Reply Brief in Support of Motion to Remand. Plaintiff would respectfully show the Court as follows: I. ARGUMENT AND AUTHORITIES IN REPLY A. The Conditional Transfer Order to the Multi District Litigation Does Not Affect the Ability of this Court to Remand this Case to State Court.

After the motion to remand in this case was file with this Court, a conditional transfer order was issued. (Conditional Transfer Order, attached as Exhibit A). A conditional transfer order is an administrative device, issued by the Clerk of the Judicial Panel on Multidistrict Litigation ("JPML"). If any party opposes transfer, the issue must be resolved by the Panel. Rule 7.4, Rules of the Judicial Panel on Multidistrict Litigation. The pendency of a conditional transfer order "does not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court." Rule 1.5, Rules of the Judicial Panel on Multidistrict Litigation. Unless and until the MDL Panel transfers a case, the district court has the authority to rule on timely motions to remand. See, e.g., Gen. Elec. Co. v. Byrne, 611 F.2d 670, 673 (7th Cir.1979) ("The mere pendency of a motion to transfer before the Multidistrict Panel does not affect or suspend the jurisdiction of the transferor court, or limit its ability to act on matters properly before it.");

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Asbury-Castro v. GlaxoSmithKline, Inc., 352 F.Supp.2d 729 (N.D.W.Va. 2005) (district court "may rule on the remand motion regardless of the fact that the MDL Panel has entered a conditional transfer order" and "continues to retain jurisdiction over the matter until a final transfer order is entered"); In re Mass. Diet Drug Litig., 338 F.Supp.2d 198, 201 (D.Mass. 2004) (finding that it is "proper and efficient to rule on the pending motions to remand rather than wait for the JPML to decide whether to transfer the cases to the MDL Court"). Indeed, ruling on such motions is a "fundamental obligation of all courts of limited jurisdiction." Ill. Mun. Retirement Fund v. Citigroup, Inc. 391 F.3d 844, 852 (7th Cir. 2004) (upholding authority of district court to remand case while conditional transfer order was pending). In short, the condition transfer order has no effect on motion to remand currently pending before the Court. B. Plaintiff Has Not Acted in Bad Faith or Attempted to Improperly Manipulate the Judicial System.

Defendant has accused Plaintiff of strategically waiting to amend its complaint so as disadvantage Defendant. The record simply does not support such an accusation. As admitted by Defendant, Plaintiff was investigating claims against Defendant in the summer of 2006. Plaintiff was investigating whether she had a viable claim against the Defendant. When it was determined that she had viable claim against Defendant, Plaintiff pursued amending the complaint. See Plaintiff's Motion to Amend the Complaint, attached as Exhibit B to this motion). Defendant has not demonstrated that any delay in initially including Defendant in the case was due to an improper motive. Rather, the record shows that Plaintiff did not add Defendant to the case until it had a good faith belief that it had a viable claim. This is unarguably proper conduct. In short, Defendant's baseless allegations of manipulation are as offensive as they are unsupported.

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Defendant also has claimed that Plaintiff delayed amending the complaint to add it as a defendant until after discovery had closed. This is simply untrue. Discovery is currently open and will remain so under the current scheduling order until June 22, 2007. (See Master Trial Scheduling Order at 29, attached as exhibit C). Additionally, Defendant has asserted that it has been denied the opportunity to depose the decedent's coworkers. This is likewise untrue because discovery is still open. See id. Beyond the fact that the coworkers are available to Defendant for discovery, Plaintiff has also made the decedent's mother available to Defendant for deposition. (See correspondence dated March 12, 2007, attached as Exhibit D). What makes these misrepresentations all the more brazen is the fact that the parties were discussing deposition dates at the time Defendant removed this case to federal court. Id. Defendant also attempts to cast Plaintiff in a bad light because it was not served with the complaint until weeks after it was initially filed with the court. This misrepresents the reality of the situation in that all actions necessary for Plaintiff to perfect service were completed on or about October 17, 2006. (First Amended Complaint, attached as Exhibit E; see Praecipe, October 17, 2006, attached as exhibit F). After Plaintiff performed these actions, the date of actual service was completely dependent upon when the sheriff's department performed its duties. No delay was created by Plaintiff and it is misleading to suggest otherwise. Defendant also makes much of the fact that it was added as a defendant after the decedent's death and that this prevented it from obtaining discovery from decedent. Defendant goes so far as to accuse Plaintiff of postponing amendment of the complaint until after decedent's death in order to deprive Defendant of the opportunity to depose the decedent. This wild and unsupported allegation is simply untrue. Also, it should be noted that Defendant has not suffered any damage

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from not getting to depose the decedent because Plaintiff will not be using deposition testimony identifying Defendant as providing exposure to asbestos containing materials. In fact, it appears that Defendant has actually derived a benefit from being added as a defendant after decedent's death because the testimony from that deposition identifying Defendant can no longer be used by Plaintiff. If Defendant would have been a party at the time of the deposition the evidence derived from the deposition would likely have been harmful to its defense. Defendant also repeatedly complains that it has been deprived of the same opportunity to remove as the other defendants in the case. This is also a misrepresentation of reality because no defendant could have removed this case before Defendant was added as a defendant, as it is undisputed that diversity did not exist until months after Defendant was added to the case. Finally, Defendant asserts that "Plaintiff agreed to remove this case from the Delaware Superior Court's trial list expressly because of her own delays." This is yet another example of Defendant simply misrepresenting reality. The truth of the matter is that Plaintiff agreed to remove this case from the trial list in order to provide Defendant time to conduct discovery. Such agreement was an accommodation, not manipulation. Defendant's attempt to capitalize on Plaintiff's

agreement by asserting it was due to bad acts rather than good faith makes Defendant's argument even more repugnant. Based on the actual facts, as opposed to the misrepresentations put forth by Defendant, it is difficult to see exactly how Defendant has been harmed by not being joined in the initial complaint. In fact, it appears Defendant is in a better position than had it been initially included in the original complaint. In short, Defendant has failed to demonstrate any bad acts on the part of Plaintiff and its unsupported representations to the contrary should be disregarded.

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C.

Defendant's Arguments Regarding Personal Jurisdiction and Forum Selection Are Simply Irrelevant.

In its Opposition, Defendant continually relies on arguments regarding personal jurisdiction and forum selection. These arguments are irrelevant as to whether remand is appropriate. The simple fact is that the case was filed in Delaware. (Original Complaint, attached as Exhibit G). If on remand the Delaware state court agrees with Defendant's arguments regarding personal jurisdiction and forum selection then the Delaware state court can take appropriate action. Alternatively, should this Court deny the remand motion, it could then address these complaints. For now, however, these arguments remain completely irrelevant and should be disregarded in determining whether to remand this case to the state court. D. This Case Should Be Remanded Because it Has Progressed Substantially in the Delaware State Court and Removal at this Point in the Case Would Be Disruptive.

The most basic underlying reason for the one year period for removal is to prevent disruption of cases in which substantial progress has already been made in state court. The present case has progressed so substantially that it actually has been completed as to all but one defendant. (See correspondence dated March 13, 2007, attached as Exhibit H). This case presents precisely the situation that Congress intended to address with the one year period for removal. Also, it should be noted that this case has been conditionally transferred for multi district litigation treatment. (See Conditional Transfer Order, attached as Exhibit A). As noted by the court in Sledz v. Flintkote Co., the very fact that a case might be transferred for multi district litigation treatment bolsters the reasons for remand in cases that have already substantially progressed:

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It seems clear, however, that if the case remains in this court, it will almost certainly become the subject of a motion by Flintkote for multi-district litigation treatment. . . . Inevitably, therefore, to permit removal of this case on the dubious ground that I have "discretion" to override the command of the federal removal statute, as informed by Maryland law, would cause a substantial "slow down" in the progress of the case to conclusion. Sledz v. Flintkote Co., 209 F.Supp.2d 559 (D.Md. 2002). Such a "slow down" is in direct contravention to the federal removal statute and would surely result in the present case as it has already been conditionally transferred for multi-district litigation treatment. Such a slow down in a case that has not only substantially progressed, but actually run its course for all but one defendant surely is what Congress intended to prevent by instituting the one year period for removal. E. This Case Should Be Remanded Because the Notice of Removal Was Filed More than One Year after the Commencement of the Lawsuit. 1. Delaware State Law Determines the Date of Commencement.

Defendant and Plaintiff both agree that in determining the date of commencement "the applicable state's law" controls. VWA's Answering Brief at 10. Where the parties differ is on the applicable state. Fortunately the law on the subject is quite clear. In removal cases, timing of "commencement" of an action, for purposes of the one-year time limit for removal based on diversity, is controlled by the law of state in which action originated. O'Brien v. Powerforce, Inc., 939 F.Supp. 774 (D.Haw. 1996); Kite v. Richard Wolf Med. Instruments Corp., 761 F.Supp. 597 (S.D.Ind.1989) ("One-year limitation period for removal of diversity action begins to run when case is commenced, and commencement is determined by law of state in which case was filed.") (emphasis added); Zumas v. Owens-Corning Fiberglas Corp., 907 F.Supp. 131 (D.Md. 1995) (noting that courts considering the question "have looked to the law of the state in which the state court action originated" (emphasis added); see also Perez v. Gen.

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Packer, Inc., 790 F.Supp. 1464, 1469 (C.D.Cal.1992) (applying California law and holding that, in removal cases, timing of "commencement" of case is controlled by law of state in which action originated.") (emphasis added); Saunders v. Wire Rope Corp., 777 F.Supp. 1281, 1283 (E.D.Va.1991) (Virginia law); Provenza ex rel. Provenza v. Yamaha Motor Co., Ltd, 295 F.Supp.2d 1175 (D.Nev.,2003) ("For purposes of the one year limitation on diversity jurisdiction cases, "commencement" of an action is governed by the law of the state in which the case originated.") (emphasis added); In re Expedia Hotel Taxes & Fees Litig., 377 F.Supp.2d 904, 906 (W.D.Wash.2005) ("in removal cases, `commencement' is governed by the law of the state in which the action originated.") (emphasis added). This case was originally filed in Delaware state court. (Original Complaint, attached as Exhibit G). As a general rule, the law of Delaware will govern procedural matters in cases filed in Delaware. Chaplake Holdings, LTD. v. Chrysler Corp., 766 A.2d 1, 5 (Del.Supr. 2001); Connell v. Delaware Aircraft Ind., Del.Super., 55 A.2d 637, 640 (1947); Monsanto Co., v. Aetna Cas. and Surety Co., Del.Super., No. 88C-JA-118, 1994 WL 317557 at *4, (Del.Supr. Apr. 15, 1994); Taylor v. LSI Logic Corp., Del. Ch., No. 13915, 1998 WL 51742, at *4 (Del.Ch. Feb. 3, 1998). The procedural law of a foreign state can be applied in the rare circumstances "when the law of a foreign state is applied to substantive issues [and] the procedural law of the foreign state is `so inseparably interwoven with substantive rights as to render a modification of the foregoing rule necessary, lest a party be thereby deprived of his legal rights.'" Monsanto, 1994 WL 317557 at *4 (quoting Connell, 55 A.2d at 640). Defendant in this case has not even attempted to demonstrate that the law applying to the substantive issues in this case is so "inseparably interwoven with substantive rights" as to necessitate abandoning the general rule. Absent such a showing, Delaware state courts would

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apply Delaware procedural law. Likewise, the failure to make this showing requires this Court to apply Delaware procedural law in determining the date of commencement. Under the above principles, Delaware state law should determine the date of commencement.1 Defendant has not suggested any compelling reason for disregarding the above precedent and applying the law of a state in which no procedural actions have been taken over the law of the state under which the entirety of this case has been conducted. 2. Under Applicable Law, the Date of Commencement Is the Initial Date of Filing.

Delaware Superior Court Civil Rule 3(a) provides that an action is commenced by filing with the Prothonotary a complaint and a praecipe. The Original Complaint and praecipe were filed with the Prothonotary on February 28, 2006. (Original Complaint, attached as Exhibit G; see Praecipe, February 28, 2006, attached as Exhibit I). This action was therefore commenced for purposes of the one year period for removal on February 28, 2006. a. The Relation Back Doctrine Does Not Apply in the Removal Context.

Defendant has attempted to cloud the issue with an irrelevant argument that the relation back doctrine changes the commencement date to the date it was added to the case. The relation back doctrine, however, does not apply in the context of determining the one year removal period. In fact, Defendant was unable to cite a single Delaware case applying the relation-back doctrine in the removal context. The majority of Defendant's cases address situations involving statutes of limitations, not removal under the one year period in section 1446(b).

Because Delaware law applies, Defendant's arguments regarding relation-back doctrine and inexcusable neglect based in Washington law are irrelevant. 8

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Under its relation-back argument, Defendant attempts to argue that an amended complaint that adds a new party does not "relate back" to the initial complaint. Defendant's cases are plainly inapplicable to the present case, however, as they merely address the relation back doctrine in respect to a limitations defense. See e.g. Schott v. Hechinger Co., No. CIV. A. 96C-06-012, 1997 WL 358306 (Del.Super. March 20, 1997) (unpublished) ("[T]he amendment relates back to the date of the original pleading pursuant to Rule 15(c)(3) so as to bar a statute of limitations defense. . . .").2 A statute of limitations is "designed to move suits expeditiously toward trial," and will necessarily "conflict with the strong public policy that seeks to dispose of litigation on the merits rather than on procedural grounds." Progressive West Ins. Co. v. Preciado, 479 F.3d 1014 (9th Cir. 2007) (internal quotations omitted). Based on these principles, the relation-back doctrine, was created as an exception "to mitigate the harshness of the statute of limitations. . . ." Id. The relationback doctrine would not serve any similar purpose in the removal context. The relation back doctrine seeks to ensure that cases are disposed on the merits, rather than being dismissed on procedural grounds. Id. The one year period for removal seeks to limit federal removal jurisdiction and has nothing to do with ensuring that cases are disposed on the merits. More importantly, the relation back doctrine would completely defeat the express purpose of the one year period for

The cases cited by Defendant that actually do address the one year period for removal are all from outside the third circuit and/or find the removal period does not apply for reasons other than the relation-back doctrine (Haywood v. Tribeca Lending Corp., No. Civ.A.2:06CV108-P-A, 2006 WL 2708578 (N.D.Miss. Sept. 20, 2006) - case initially removable therefore one year period did not apply); or they are factually distinguishable (Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801 (5th Cir. 2006) - addressing the Class Action Fairness Act which specifically exempts amended defendants from the one year period for removal); Pierson v. Scott, No. C 06-6503 PJH, 2007 WL 160924 (N.D.Cal. Jan. 17, 2007) - applying California law). 9

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removal by expanding the period a case could be removed and increasing the number of cases in federal courts. Because the purposes of statutes of limitations and the one year period for removal are completely different, and even contrasting, and because the relation-back doctrine in the removal context would undermine congressional intent, cases utilizing the relations-back doctrine in the limitations context are not at all useful in assessing the timeliness of a removal by a defendant added in an amended complaint.3 Consequently, this Court should disregard Defendants' arguments regarding the relation-back doctrine. b. Congress Expressed No Intent to Allow the Loophole Defendant Encourages this Court to Create.

In concert with its relation-back argument, Defendant repeatedly asserts that the case recommenced for purposes of the one year period for removal upon the filing of an amendment adding it to the case. There is no provision in law, however, for any such recommencement. Defendant is simply seeking a loophole that does not exist and was not intended by Congress. If Congress had intended for the one year period for removal to start anew whenever a new defendant were added to a case, it could simply have inserted such a provision in section 1446(b). Alternatively, Congress could have included language that would toll the time period separately for each claim or each defendant. Congress took neither of these actions. Because Congress chose not to make the one year period for removal party specific, it should be assumed it was not Congress'

Defendant also cites cases involving the Class Action Fairness Act ("CAFA"). The CAFA specifically exempts amended defendants from the one year period of removal. If amended defendants were already allowed this exemption it would be unnecessary to include such a provision in the CAFA. Regardless, because of this distinction, the cases cited by Defendant involving CAFA are irrelevant. 10

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intent to do so. See Sasser v. Ford Motor Co., 126 F.Supp.2d 1333 (M.D. Ala.2001); see also Sledz v. Flintkote Co., 209 F.Supp.2d 559 (D.Md. July 11, 2002). This logic is also in line with the plain language of § 1446(b). In a case not initially removable the notice of removal must 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" indicating that the case has become removable. 28 U.S.C. § 1446(b). In such a case, a defendant is granted a measure of protection because the clock for filing a notice of removal does not start running until the defendant receives actual notice that the case has become removable. In contrast, Congress did not use such protective language with regard to the one year limitation. Instead, the one year time period is measured from the "commencement of the action." Id. The decision to provide protection for later added defendants regarding the 30 day deadline, while limiting the ultimate period for removal balances the interests involved. This balance should not be disturbed by judicial intervention. 3. The One Year Period Is Mandatory.

Contrary to Defendant's position, the one year period for removal is mandatory. Robinson v. Ruiz, 772 F.Supp. 212 (D.Del. 1991); see generally 14A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3732 at 527-30 (2d ed. 1985). This is even supported by the very case Defendant cites to rebut this assertion. Defendant cites Ariel Land Owners, and asserts that the one year period is not mandatory because it is not jurisdictional. Contrary to Defendant's assertion, Ariel Land Owners actually acknowledges that the language is mandatory, but not necessarily jurisdictional. See Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 615 n.22 (3rd Cir. 2003) (acknowledging that the one year period is "mandatory language"). A requirement may be

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mandatory while at the same time not being jurisdictional. A mandatory rule must be followed, however if a party fails to object to violation of a mandatory rule it may be waived. Consequently if Plaintiff had failed to timely object to Defendant's removal, the objection would have been waived. It does not, as Defendant suggests, permit the one year period for removal to simply be discarded on a whim. F. The Removal Should Not Be Permitted to Stand on an Equitable Exception That Does Not Exist.

Defendant argues that it should be granted an equitable exception to the mandatory one year period for removal based on inequitable conduct. Defendant has not cited a single case in the third circuit that would permit such an exception. This is not surprising considering that not a single case in the entire third circuit has permitted an equitable exception to avoid the absolute one year deadline. Instead of basing its argument on any binding law, Defendant instead argues that it should be permitted to violate the one year period because Plaintiff has acted in bad faith in prosecuting its case against Defendant. Defendant, however, has failed to present any evidence of bad faith. As discussed above, Defendant only presents empty allegations, supported only by examples of appropriate conduct on the part of Plaintiff or misrepresentations of the Plaintiff's conduct. Supra at 3-5. If plaintiff truly intended to manipulate the proceedings, she could simply have waited until one year had passed before settling with the all the other defendants. This was not the case, as the settlements with regard to the last remaining defendants were entered into weeks before the one year period for removal expired. (See Settlement Agreement (redacted) attached as Exhibit J; see

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correspondence dated March 12, 2007, attached as Exhibit D; see correspondence dated March 13, 2007, attached as Exhibit G; see Order, January 17, 2007, at 5, attached as Exhibit K). Additionally, as discussed above, Plaintiff agrees that the deposition testimony identifying Defendant as exposing the decedent to asbestos containing products may not be used against Defendant. Hence, why would Plaintiff purposefully choose to delay amending the complaint until a time when the deposition testimony could not be used. Such is truly at odds with Defendant's assertion that Plaintiff has tried to gain an advantage against Defendant by delaying amendment until after Mr. Collins' death. Even if the allegations made by Defendant were actually true or if the conduct of Plaintiff was even questionable, it should be noted that "facts that could indicate forum manipulation are not enough to demonstrate actual forum manipulation." Blue v. Equifax Info. Servs., LLC, Slip Copy, 2007 WL 602295 (N.D.Cal.,2007). "A plaintiff has every right to do all that is possible, within the bounds of ethical constraints, to ensure that his case remains in state court; a defendant has an equally defensible privilege to do all it can, under like constraints, to push or pull the action into federal court." Sledz v. Flintkote Co., 209 F.Supp.2d 559 (D.Md. 2002). In short, an allegation that a defendant should have been joined in a case sooner, particularly when the Plaintiff was actively investigating the viability of a claim against the defendant, does not arise to the level of bad faith manipulation that would permit an exception to the mandatory one year period, assuming any such exception exists.

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II.

CONCLUSION Volkswagen failed to timely remove this case to federal court. This case should be remanded

to state court without further delay. Respectfully submitted, WEISS & SAVILLE, P.A. 1220 North Market Street, Suite 604 P.O. Box 370 Wilmington, DE 19899 Phone: 302/656-0400 Fax: 302/656-5011 By: /s/ Yvonne Takvorian Saville Yvonne Takvorian Saville, #3430

~ and ~ BARON & BUDD, P.C. The Centrum, Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 Phone: 214/521-3605 Fax: 214/520-1181 Attorneys for Plaintiffs Date: May 4, 2007

CERTIFICATE OF SERVICE I hereby certify that on the 4th day of May, 2007, a true and correct copy of the above and foregoing instrument was served via LEXIS NEXIS eFile and Serve system to all counsel of record.

/s/ Yvonne Takvorian Saville Yvonne Takvorian Saville, #3430

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