Opinion
No. 6:19-CV-307-REW-HAI
2020-04-29
Miranda SIZEMORE, Plaintiff, v. AUTO-OWNERS INSURANCE COMPANY, Defendant.
OPINION AND ORDER
Robert E. Wier, United States District Judge
Plaintiff Miranda Sizemore seeks remand to the Clay Circuit Court based on the one-year removal limit in 28 U.S.C. § 1446(c)(1). DE #5 (Motion). Defendant Auto-Owners Insurance Company opposes the effort, arguing that Plaintiff acted in bad faith to preclude timely removal. But Auto-Owners, tasked with demonstrating removal propriety, does not engage the critical threshold inquiry: Whether the time for removal passed well before Sizemore's disingenuous effort to cap damages and avoid a federal forum—indeed, even before Auto-Owners joined the case. The answer hinges on the meaning of the phrase "commencement of the action" as used in § 1446(c)(1). Defendant fails to address the law, squarely against it, on this determinative question; nor does it offer contra authority. Neither side offers helpful advocacy on this crucial point. Still, the Court must apply the statute as written, with apt attention to foundational interpretive principles and relevant case law, and Auto-Owners fairly bears the burden of establishing that removal is proper and, relatedly, the risk of an inadequate showing.
Narrowly construing the removal statutes, requiring strict compliance with them, and resolving any lingering doubt in favor of remand, as it must, the Court finds Auto-Owners's removal burden unmet in this case. For the reasons and per the authority discussed, this action commenced for § 1446(c)(1) purposes upon original complaint filing in 2008; the one-year removal window closed in 2009, and it did not reset when Sizemore joined Auto-Owners in June 2012. Accordingly, Sizemore's unscrupulous gamesmanship regarding the amount in controversy, beginning with her October 2012 damages stipulation and culminating in her inexplicable 2019 withdrawal of same—though deeply troubling —is irrelevant to the central commencement issue and timeliness analysis. Sizemore's bad faith forum manipulation tactics did not impact removal timeliness, given the chronology. The period for timely removal expired much earlier, in 2009; Auto-Owners has not shown otherwise, as is its burden. Remand is thus required.
As is the Clay Circuit's summary permission.
1. Background
A May 2008 two-vehicle collision in Manchester, Kentucky spawned twelve years of contentious litigation, including this outgrowth insurance case. The original plaintiff, Willa Smallwood, sued fellow driver Corbet Hensley in Clay Circuit Court in October of that year. DE #1-2 at 1–2. In April 2009, the state court permitted Smallwood to intervene in the case on behalf of her then-minor daughter, Miranda Sizemore. DE #1-3 at 1–7. Smallwood subsequently dismissed her individual claims against Hensley in September 2009. Id. at 30. In February 2010, the court permitted Sizemore, through Smallwood, to amend the intervenor complaint, adding Kentucky Farm Bureau Mutual Insurance Company (Sizemore's underinsured motorist policy carrier) as a defendant. DE #1-4 at 20–24. Before trial, Sizemore settled the claims against both Hensley and Kentucky Farm; on May 3, 2012, she moved to amend the intervenor complaint a second time to assert a bad faith claim against Auto-Owners, Hensley's insurer. DE #1-6 at 74–81. On June 4, 2012, while the motion for leave to file a second amended intervening complaint pended, the Clay Circuit dismissed Sizemore's claims against Hensley and Kentucky Farm. Id. at 76 (Agreed Order of Partial Dismissal). The Clay Circuit then permitted the requested amendment and added Auto-Owners to the case on June 7, 2012. Id. at 78. The court docketed the second amended intervening complaint and ordered service on Auto-Owners on that date. Id. Auto-Owners received service on or about June 25, 2012. DE #1-1 ¶ 4; DE #1-6 at 104.
Though the court issued the dismissal order on June 4, the clerk did not enter it until the following day.
Defendant's notice of removal references service on June 25, but the state record reflects a June 26 service date. The one-day discrepancy has no impact on this case or the instant remand motion.
Auto-Owners removed this case, for the first time, on July 19, 2012. DE #1-7 at 4–22. The case was assigned to Judge Thapar, see Smallwood v. Auto-Owners Ins. Co. , No. 6:12-cv-00149-ART, at E.C.F. No. 1 (July 19, 2012), who remanded the case to the Clay Circuit, finding the amount-in-controversy requirement not satisfied, id. , at E.C.F. No. 7 (Aug. 1, 2012). Judge Thapar noted that, though the case was not then removable, Auto-Owners could seek removal again, subject to the one-year limit, if state court discovery produced evidence preponderantly demonstrating that more than $75,000 (exclusive of costs and interest) was in controversy. Id. , at E.C.F. No. 7, p. 3. Following remand, however, in October 2012, Sizemore stipulated "that any and all claims for damages asserted by Intervening Plaintiff, Miranda Sizemore, against Intervening Defendant, Auto-Owners Insurance Company ... [we]re limited to $74,999.99." DE #1-19 (Stipulation).
The case between Sizemore and Auto-Owners proceeded in the Clay Circuit for the next seven years, without any apparent increase of the damages sought. On August 12, 2019 (with trial set for January 27, 2020, see DE #1-10 at 40), Sizemore filed a set of "Final CR 8.01 Disclosures" (DE #1-22) revealing—for the first time—that she intended to seek a total of $22 million in damages at trial ($2 million in compensatory damages, plus $20 million in punitive damages). Id. In response, Auto-Owners moved to enforce Plaintiff's earlier damages stipulation. DE #1-23. On December 20, 2019, the Clay Circuit summarily allowed Sizemore to withdraw the previous stipulation and seek $22 million at trial. DE #1-24. Auto-Owners again removed the case on December 26, 2019, DE #1, and Plaintiff sought remand on December 30, DE #5. Defendant opposed the motion. DE #6. Sizemore declined to reply.
In July 2016, the Clay Circuit Court restyled the case caption to reflect that Sizemore and Auto-Owners were the lone remaining parties. DE #1-20. The original case number from 2008 remained unchanged.
2. Removal Standard
Removal is proper if the plaintiff could have originally brought the case in federal court. 28 U.S.C. § 1441(a). Diversity jurisdiction—the removal basis here—exists "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states." 28 U.S.C. § 1332(a). Removal, governed by statute, requires complete diversity of citizenship. Jerome-Duncan, Inc. v. Auto-By-Tel, LLC , 176 F.3d 904, 907 (6th Cir. 1999). Section 1446 generally requires defendants to remove qualifying cases within thirty days of service. 28 U.S.C. § 1446(b)(1). However, "if the case stated by the initial pleading is not removable," a defendant may remove the action "within thirty days after receipt ... 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." Id. § 1446(b)(3). Even so, a defendant cannot remove a diversity case under subsection (b)(3) "more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id. § 1446(c)(1). The one-year requirement is a procedural (rather than jurisdictional) limit on removal. See Music v. Arrowood Indem. Co. , 632 F.3d 284, 288 (6th Cir. 2011). The removing party bears the burden of establishing diversity jurisdiction. See Coyne ex rel. Ohio v. Am. Tobacco Co. , 183 F.3d 488, 493 (6th Cir. 1999) ; see also Her Majesty The Queen in Right of the Province of Ontario v. City of Detroit , 874 F.2d 332, 339 (6th Cir. 1989) (emphasizing that "[t]he party seeking removal bears the burden of establishing its right thereto"). The removal proponent further bears the burden of demonstrating strict compliance with the statutory procedural requirements, including the timing directives outlined in § 1446. See, e.g., Seaton v. Jabe , 992 F.2d 79, 81 (6th Cir. 1993) (quoting Northern Illinois Gas Co. v. Airco Indus. Gases , 676 F.2d 270, 273 (7th Cir. 1982) ) ("The strict time requirement for removal in civil cases is not jurisdictional; rather, ‘it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived.’ ") (footnote omitted); Zipline Logistics, LLC v. Powers & Stinson, Inc. , No. 2:15-CV-693, 2015 WL 4465323, at *5 (S.D. Ohio July 21, 2015) ("[R]emoving defendants ... bear the burden of demonstrating that all procedural requirements set forth in § 1446 have been satisfied."); May v. Johnson Controls, Inc. , 440 F. Supp. 2d 879, 882 (W.D. Tenn. 2006) ("The law places the burden on the defendant to show that removal is in compliance with the procedural requirements.") (collecting cases); Groesbeck Investments, Inc. v. Smith , 224 F. Supp. 2d 1144, 1148 (E.D. Mich. 2002) ("The burden is on the defendant of showing that it has complied with the procedural requirements for removal.") (collecting cases).
A party opposing removal thus may forfeit the right to rely upon it, if the party does not timely seek remand. See 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."). Sizemore timely sought remand in this case.
"In interpreting the statutory language, we are mindful that the statutes conferring removal jurisdiction are to be construed strictly because removal jurisdiction encroaches on a state court's jurisdiction." Brierly v. Alusuisse Flexible Packaging, Inc. , 184 F.3d 527, 534 (6th Cir. 1999) (citing Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 61 S. Ct. 868, 872, 85 L.Ed. 1214 (1941) ). "Thus, in the interest of comity and federalism, federal jurisdiction should be exercised only when it is clearly established, and any ambiguity regarding the scope of [ § 1446's requirements] should be resolved in favor of remand to the state courts." Id. ; accord First Nat. Bank of Pulaski v. Curry , 301 F.3d 456, 462 (6th Cir. 2002) ; Mays v. City of Flint, Mich. , 871 F.3d 437, 442 (6th Cir. 2017) ; Shamrock Oil , 61 S. Ct. at 872 ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.") (quotation marks and citation omitted). Against this backdrop, the Court—narrowly construing the removal statutes, requiring strict compliance, and resolving all doubts in favor of remand—confronts the procedural deficit plaguing Auto-Owners's petition.
The Brierly Court specifically referred to the time limits in former § 1446(b) and, in particular, emphasized the one-year removal limit.
3. Discussion
Auto-Owners focuses on Sizemore's bad faith in 2012 (as revealed in 2019) and gives only a cursory nod to the commencement topic. Plaintiff's position, equally under-developed, is simply "that the time limit to remove the case passed well before any stipulation was put in the record[,]" rendering the bad faith question irrelevant. DE #5-1 at 2. Unhelpfully, neither party offers substantive argument or authority concerning the determinative inquiry—whether "commencement of the action" under § 1446(c)(1) refers to Smallwood's 2008 filing of the suit against Hensley or to intervenor Sizemore's 2012 joinder of the bad-faith claim against Auto-Owners. If the one-year period began to run on the date Smallwood filed the original Complaint (October 16, 2008), it expired long before Sizemore joined Auto-Owners, via the Second Amended Complaint, in June 2012. Only if the § 1446(c)(1) removal period reset upon Auto-Owners's joinder would the bad faith removal-prevention issue Defendant raises—centered on Sizemore's October 2012 damages stipulation—possibly become relevant.
Though Auto-Owners conclusorily maintains that Sizemore's position "is both disingenuous and erroneous, as the bad faith claim that is before this Court did not even exist on October 16, 2009, nor was Auto-Owners a party to the litigation at that time[,]" it cites only the text of § 1446(c)(1) in support. DE #6 at 10–11. Defendant further reasons, without legal support:
There would have been no way for Auto-Owners, which was not a party to the action on October 16, 2009, to seek removal of a bad faith claim which had not been made on October 16, 2009. Holding that removal of this bad faith action is time-barred by the date of commencement of the underlying case would produce an absurd result.
Id. at 12 (footnote omitted). True enough that Auto-Owners could not remove the case, of which it was not yet a part, in 2009. But is the opposed commencement result indeed absurd? Essentially every case to address the issue—all perplexingly and frustratingly ignored by Auto-Owners—some involving the precise claim categories at issue here and similar chronologies, decidedly say not. Defendant's conclusory and hyperbolic argument, notably contrary to authority on the topic, is utterly unpersuasive. Such an effort does nothing to convince the Court of Auto-Owners's "strict" compliance with the § 1446 requirements. Again, that is Defendant's removal burden.
At the analytical outset, the Court rejects Auto-Owners's heavy reliance on the 2012 remand opinion's suggestion that Auto-Owners could attempt to remove again if it received additional evidence establishing the requisite amount in controversy. See DE #6 at 6 ("In effect, this Court has already held that Auto-Owners' 2012 Notice of Removal was timely filed.) (emphasis in original); see Smallwood v. Auto-Owners Ins. Co. , No. 6:12-cv-00149-ART, at E.C.F. No. 7, p. 3. ("Although this case is not yet removable, the Court hastens to point out that Auto[-]Owners has not squandered their only opportunity to remove this case ... [I]f subsequent events—such as discovery responses—reveal that the amount in controversy exceeds the jurisdictional amount, Auto-Owners may be able to remove the case again."). Judge Thapar did not, in 2012, in any way confront the commencement issue. Immediately upon removal, he ordered Auto-Owners to address the amount in controversy and, unsatisfied with the jurisdictional prerequisite, remanded on that basis. No party raised the non-jurisdictional timeliness question, and the court thus did not analyze it or undertake the foundational commencement inquiry. See RFF Family P'ship, LP v. Wasserman , 316 F. App'x 410, 411 (6th Cir. 2009) ("A procedural defect in removal may not be raised by the district court sua sponte. "). Indeed, Sizemore had no participation in the matter; Judge Thapar remanded sua sponte within days of removal. The 2012 remand order did not consider, and is not dispositive of, the commencement question on which the timeliness analysis ultimately turns. The Court is not bound on the issue, left undecided. See, e.g., Quern v. Jordan , 440 U.S. 332, 99 S. Ct. 1139, 1148 n.18, 59 L.Ed.2d 358 (1979) (observing that "[t]he doctrine of law of the case comes into play only with respect to issues previously determined"); Burley v. Gagacki , 834 F.3d 606, 617–618 (6th Cir. 2016) (noting that a later court in the same case is not bound on a "question [ ] not decided").
Unlike in 2012, Sizemore now raises (albeit summarily) the one-year bar in opposing removal. Nearly all courts that have addressed whether a new "action," as the word is used in § 1446(c)(1), commences upon a later defendant's joinder have answered the question in the negative. Rather, "the one-year clock in § 1446 [c] starts to tick when the original complaint is filed, and this time limit does not reset for later-added defendants." In re Pikeville Sch. Bus Collision Cases , No. 11-CV-158-ART, 2011 WL 6752564, at *3 (E.D. Ky. Dec. 23, 2011) (footnote added). Relying on historical usage and plain meaning of the relevant phrase, the Pikeville School Bus court concluded that the text of § 1446 unambiguously supports construing action commencement as occurring only once—at the time of the initial complaint. Id. at *4. It further reasoned that, "if an intervening plaintiff's claims against a later-added defendant qualified as a new ‘civil action,’ " id. , the plain language of § 1441 would impermissibly authorize piecemeal removal. The court observed that Congress surely could have—but did not—"distinguish between defendants named in the original complaint and later-added defendants" in setting removal time limits. Id. at *5. Finally, the court noted that resetting the removal window for each later-added defendant "would contradict Congress's intent in creating the one-year removal limit as a rule-like means of reducing the opportunity for removal after substantial progress has been made in state court." Id. at *6 (internal quotation marks and citation omitted).
The one-year limit has relocated from subsection (b) to (c). Its import is identical.
As in that case, here "it does not matter whether the Court relies on federal or state law to interpret ‘commencement of the action’ because applying the Federal Rules of Civil Procedure and Kentucky Rules of Civil Procedure yield the same result" on this question. Id. Whether state or federal law governs the commencement question is not entirely clear. Compare Easley v. Pettibone Michigan Corp. , 990 F.2d 905, 908 (6th Cir. 1993) ("State law determines when an action is commenced for removal purposes.") with Brierly , 184 F.3d at 534 (applying Federal Rule of Civil Procedure 3 to determine when the one-year window in § 1446 began). Federally, an action commences upon complaint filing. Fed. R. Civ. P. 3. The same, basically, is true in Kentucky, though with summons issuance as an added mark. See Ky. R. Civ. P. 3.01 ("A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith."); see also KRS § 413.250 ("An action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action."). Application of either Kentucky or federal law to the commencement question provides for a single commencement date for each action, occurring at case outset.
The Court expects that Judge Thapar, the Pikeville School Bus author in 2011, would have reached the same conclusion if and when the commencement chronology, buried in a lengthy and complicated record, emerged. He never got past the jurisdictional issue of amount in controversy in this case.
Other courts have reasoned similarly, reaching the same result. See, e.g., US Airways, Inc. v. PMA Capital Ins. Co. , 340 F. Supp. 2d 699, 706 n.8 (E.D. Va. 2004) ("If Congress had intended that a separate and distinct one year removal limit would commence to run upon the joining of any additional defendant, it would have written the statute to read that diversity cases are barred from removal more than one year after commencement of the action against each defendant."); Sasser v. Ford Motor Co. , 126 F. Supp. 2d 1333, 1336 (M.D. Ala. 2001) ("[T]he term ‘commencement of action’ should be understood to refer to commencement of the action initially, and not as to any later addition of a particular party or claim ... [I]f Congress had wanted [ § 1446(c)(1) ] to be claim or party specific, it could have worded the provision to make it so."); Moris v. Chrysler Grp., LLC , No. CIV. 14-4981 SRN/SER, 2015 WL 2373457, at *6 (D. Minn. May 18, 2015) ("Had Congress intended the removal limitation period to be applied separately to each defendant based on whenever they were joined, it could have added language to that effect[.]"); Williams v. Pegnato & Pegnato Roof Mgmt., Inc. , 619 F. Supp. 2d 420, 427 (N.D. Ohio 2008) (concluding that the state court action commenced "on the date Williams filed his original Complaint in the Court of Common Pleas on October 27, 2005, not the date on which Williams filed his Amended Complaint adding the Removing Defendants as parties, and that the Removing Defendants' removal on August 13, 2008 was prohibited by the one-year time limitation"); Lytle v. Lytle , 982 F. Supp. 671, 674 (E.D. Mo. 1997) (finding it "simply irrelevant" that the third-party removing defendants did not enter the case until more than a year after original complaint filing and rejecting removal as untimely); Norman v. Sundance Spas, Inc. , 844 F. Supp. 355, 357 (W.D. Ky. 1994) (addressing "whether the presence of a defendant who petitions for removal within one year of being joined in the lawsuit but beyond one year of the original complaint makes a case removable" and "[a]fter construing the language, history and purpose of the removal statute," concluding "that Congress intended to bar removal of diversity cases after one year from the date of the initial pleading"); First Merchants Tr. Co. v. Wal-Mart Stores E., LP , 630 F. Supp. 2d 964, 970–71 (S.D. Ind. 2008) (noting that the removing defendant had "not cited any cases ... holding that a later-added defendant can remove a case based on diversity jurisdiction more than one year after the action was commenced in state court" and recognizing that "[i]n fact, as shown below, numerous district courts have reached the opposite conclusion and have remanded cases that present the same question") (collecting cases); Howell v. St. Paul Fire & Marine Ins. Co. , 955 F. Supp. 660, 662 (M.D. La. 1997) (observing that "Congress could have specified that the one year limitation begins when an action is commenced against a new defendant[,]" but "Congress did not[,]" and finding that to hold otherwise would "conflict with the clear language and Congressional intent of section [1446]").
Analyses adopting this interpretation are numerous and persuasive, and, as discussed, Auto-Owners does not grapple with or even mention them. The plain text of § 1446(c)(1) and natural usage of the key phrase—notably missing any party-or claim-specific qualification—demonstrate Congress's intent to run the one-year period from the initial complaint. Cf. EQT Gathering, LLC v. A Tract of Prop. Situated in Knott Cty., Ky. , No. CIV.A. 12-58-ART, 2012 WL 3644968, at *1 (E.D. Ky. Aug. 24, 2012) (noting, in concluding that Rule 41 permits dismissal of only an entire case, that "[t]he Federal Rules of Civil Procedure repeatedly employ this same understanding of ‘action’ to refer to an entire proceeding" and discussing examples). Both the intervention and joinder mechanics further support such a reading; the complaint amendments and added defendants in this case, including Auto-Owners, all were assigned to the same pre-existing Clay Circuit case. Compare DE #1-2 at 1 (original complaint assigned to case No. 08-CI-00418) with DE #1-14 at 1 (second amended intervening complaint captioned same, with identical case number); see also DE #1-20 (restyling case, in terms of participating parties, but retaining pre-existing case number); accord Pikeville School Bus , 2011 WL 6752564, at *4 ("When the Pike Circuit Court permitted J.E., K.E., C.H., and C.H. to intervene, the court did not issue a new civil action number for the case. The intervening plaintiffs were simply added to existing civil action number 10–CI–01494."); US Airways , 340 F. Supp. 2d at 706 ("When additional defendants are joined, no second action is commenced and no new case number is assigned; rather, the action is then pending as to the joined defendants in addition to those parties already defendants."); EQT Gathering , 2012 WL 3644968, at *2 (E.D. Ky. Aug. 24, 2012) (noting use of the word "action" in Rules 3, 20, 23, 32, 42, 54, and 79 to refer to the entire case).
Further, Kentucky law, which endorses "one form of action to be known as ‘civil action,’ " Ky. R. Civ. P. 2, references the commencement as referring to a singular event: "A civil action is commenced by the filing of a complaint...." Ky. R. Civ. P. 3.01. The joinder rules reference inclusion of claims "in a single action." Ky. R. Civ. P. 18.02. All of this further points to each action having a defined and unitary genesis.
Kentucky's Western District, under comparable circumstances, noted that Kentucky permits a plaintiff discretion in sequencing within the same action an underlying negligence claim and a related bad faith claim against the tortfeasor's insurer (i.e. , as here, under the Unfair Claims Settlement Practices Act (UCSPA), see KRS § 304.12–230 ). See Riley v. Ohio Cas. Ins. Co. , 855 F. Supp. 2d 662, 673 (W.D. Ky. 2012) ("Courts using the exact same rules [as Kentucky] for joinder have permitted suits for bad faith against an insurer to be joined to the underlying tortious conduct in the same action, even if bifurcation of the claims was appropriate.") (collecting cases); see also id. at 672 (citing Wittmer v. Jones , 864 S.W.2d 885, 891 (Ky. 1993) ) ("Kentucky law is not vague on whether claims of bad faith against an insurer and the underlying negligence claims against an insured may proceed simultaneously."); Wittmer , 864 S.W.2d at 891 ("While we see no impediment to joinder of [negligence and UCSPA] claims in a single action, at trial the underlying negligence claim should first be adjudicated."); accord Ky. R. Civ. P. 18.02 (providing that, even where one claim is "cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action ") (emphasis added).
The Riley court found, critically, that a later UCSPA claim's addition, and the insurer defendant's joinder, do not "commence" a new action for § 1446 purposes. The Riley chronology mirrors this case. There, the plaintiff asserted negligence claims, arising out of an auto accident, against the relevant tortfeasors in a Kentucky state court. After she settled those claims, she concurrently moved to dismiss her tort claims and amend the complaint to add new UCSPA and common law bad faith claims against the insurer. Riley , 855 F. Supp. 2d at 664. The state court "simultaneously granted Riley's motion to amend her complaint and" entered "an agreed order of dismissal" as to the tortfeasors. Id. Recognizing "[t]he dispositive issue [as] whether the date of commencement under § 1446(b) resets when a later-added defendant is brought into a lawsuit pending in state court[,]" the court observed that "[c]ourts around the country have addressed the possibility of multiple commencement dates and largely decided against this statutory construction." Id. at 665.
Breaking from earlier district tendency to rely (illogically, as explained) upon the separable-controversy doctrine in permitting multiple commencement dates, the court agreed with the many others concluding that removal envisions only one. Id. at 670 ("On further review, the Court concludes the cases in this district that have permitted multiple commencement dates under [ § 1446 ] rest on a porous foundation, detached from the precedent surrounding removal."). The court further declined the insurer's invitation to, based on perceived bad faith in the claim sequencing, equitably estop the plaintiff from asserting the statutory time-bar. Id. at 672 ("[E]quitable estoppel is unjustified because the state's law condones the results in this case ... Because Kentucky law permits litigants to combine claims against insurers accused [of] bad faith with those against the individual tortfeasors, the only grievance OCIC can muster against the instant action's procedure centers on how the Christian County court permitted Riley to amend her complaint and join it as a defendant under Kentucky's civil rules."); id. at 673 (citing Peyton v. Archer , No. 2007-CA-000200, 2009 WL 3399338, at *6–7 (Ky. Ct. App. Oct. 23, 2009), and Kentucky Lottery Corp. v. Riles , No. 2004-CA-001053, 2007 WL 1785451, at *2–3 (Ky. Ct. App. June 8, 2007) ) (noting "the broad discretion Kentucky trial courts have in granting joinder motions").
On similar facts, the Western District later reached the same result:
This Court's decision [in] Riley compels a conclusion in this case that, for purposes of § 1446(c), this action was commenced when the original complaint was filed on June 20, 2007. As explained in Riley , it is immaterial that the bad faith claim against RSUI is separate and independent from the claims originally asserted against King and Skyline Motel. The Christian Circuit Court, utilizing its broad discretion, permitted Plaintiffs to amend their complaint to join a bad faith action against RSUI to the underlying tortious conduct in the same action. The filing of the Amended Complaint did not constitute the commencement of a new action. Thus, RSUI filed a notice of removal more than a year after June 20, 2007, when this action commenced.
Taylor v. King , No. 5:12-CV-1, 2012 WL 3257528, at *4 (W.D. Ky. Aug. 8, 2012). These decisions are sensibly rooted in the text and reality of Kentucky claim and party joinder rules—which permit assertion of tort and insurance bad faith claims in one action, allow plaintiffs choice in how to sequence claims, and commit joinder decisions to the sound discretion of trial courts. The Riley and Taylor courts, consistent with others confronting the commencement issue, focused on § 1446's text and purpose, functional claim and party joinder mechanics, and Congress's intent in enacting the one-year bar. Indeed, Congress intended to achieve a "modest curtailment in access to diversity jurisdiction" in cases that, like this one, had been progressing steadily in a state forum. US Airways , 340 F. Supp. 2d at 706 (quoting H.R. Rep. No. 889, at 72 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6032). The one-year limit is particularly targeted to avoid "problems that arise from a change of parties as an action progresses toward trial in state court." Id. Fundamental interpretive principles strongly support positioning § 1446's sole action commencement date at case outset, with its one-year limit unaffected by mid-action claim and party debuts—including, as here, UCSPA and bad faith claims asserted in the same action as, and at the tail-end of, underlying tort claims. Auto-Owners offers no contra authority or legal argument.
Finally, and importantly, any conceivable doubt on the commencement question is properly resolved in favor of remand. See Brierly , 184 F.3d at 534 ; Mays , 871 F.3d at 442. To the extent the interpretative issue remains open in the Sixth Circuit, despite district courts' near-uniform resolution of it, the Court must narrowly and strictly construe Congress's chosen language; any ambiguity points only toward remand. Riley , 855 F. Supp. 2d at 668 ("The law is clear [on] how to proceed when confronted with uncertain removal scenarios: any ambiguity regarding the scope of the removal statutes and all doubts as to whether removal is proper should be resolved in favor of remand to the state courts.") (internal quotation marks and citation omitted). To permit removal here would require an impermissibly broad construction of the phrase "commencement of the action" that is unsupported by the text itself (both what it includes and what it omits), inconsistent with other usages of the relevant terms, at odds with state joinder rules and practices, contrary to Congress's stated drafting intent, and consistently rejected by other courts. Moreover, Defendant, which elected to abjure the analysis, has done nothing to convince the Court that it should adopt such a construction. Under these circumstances, the Court cannot find that Auto-Owners has met its burden of demonstrating entitlement to a federal forum.
4. Conclusion
For all of these reasons, the Court concludes that the one-year window to remove expired before Auto-Owners's joinder, and well before Plaintiff's deceitful damages stipulation, which thus offers no applicable tolling relief. Accordingly, Defendant's removal effort is untimely, per strict operation of § 1446(c)(1), and remand is required. This result is unfortunate, given Sizemore's appallingly unjustified repudiation of the damages promise in 2019. But this Court cannot remedy such unfairness with improper statutory expansion. The remand outcome is the product of intended congressional limits on removal, informed by federalism and efficiency interests, in cases that have progressed considerably in the state tribunal; and, "fair or not" in ultimate impact, Congress selected this language to accomplish its legislative goal. Pikeville School Bus , 2011 WL 6752564, at *6 ; Staggs v. Union Pac. R.R. Co. , No. 1:10-CV-00096, 2011 WL 335671, at *3 (E.D. Ark. Jan. 28, 2011). "And if Congress wants to remedy any injustices created [by it], it ... has the capacity to do so." Pikeville School Bus , 2011 WL 6752564, at *6. The Court, though, must interpret and apply the statute as written, unaltered or augmented by judicial proclivities.
For these reasons, the Court GRANTS DE #5 and REMANDS this case to the Clay Circuit Court, where the twelve-year litigation saga may finally proceed to conclusion.