UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DIANNA MAE SAVILLA, as 

Administratrix of the Estate of

Linda Sue Good Kannaird,

deceased,

Plaintiff-Appellee,

v.  No. 02-2364 SPEEDWAY SUPERAMERICA, LLC, a

Delaware Corporation, d/b/a Rich

Oil Company; CITY OF CHARLESTON,

a municipality; CHARLESTON FIRE

DEPARTMENT; BRUCE GENTRY; ROB

WARNER,

Defendants-Appellants. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CA-02-1004-2)

Submitted: November 28, 2003

Decided: January 22, 2004

Before WILKINS, Chief Judge, TRAXLER, Circuit Judge, and

Richard D. BENNETT, United States District Judge for the District

of Maryland, sitting by designation.

Vacated and remanded by unpublished per curiam opinion. 
COUNSEL

Jeffrey K. Phillips, Ancil G. Ramey, STEPTOE & JOHNSON, PLLC,

Charleston, West Virginia, for Appellants City of Charleston,

Charleston Fire Department, Bruce Gentry, and Rob Warner; Joseph

S. Beeson, David L. Yaussy, Keith J. George, Robert P. George,

ROBINSON & McELWEE, PLLC, Charleston, West Virginia, for

Appellant Speedway SuperAmerica, LLC. Margaret L. Workman,

MARGARET WORKMAN LAW, Charleston, West Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Speedway SuperAmerica, LLC, the City of Charleston, the

Charleston Fire Department, Bruce Gentry, and Rob Warner (collectively, "Appellants") appeal a district court order remanding Dianna

Mae Savilla’s claims to the Circuit Court of Kanawha County, West

Virginia. Appellants contend that the district court erred in determining that the notice of removal was premature. Because we agree, we

vacate the order and remand. 

I.

Savilla, as the administratrix of the estate of Linda Kannaird, filed

suit against Appellants in the Circuit Court of Kanawha County on

April 11, 2000 for events that allegedly caused Kannaird’s death on

February 18, 2000. On July 31, 2002, Savilla filed a motion to amend

her complaint "to add an additional claim . . . wherein Plaintiff asserts

that her constitutional rights of equal protection and due process have

been violated." J.A. 18. She further characterized these constitutional

rights as deriving in part from "the Fourteenth Amendment to the

2 SAVILLA v. SPEEDWAY SUPERAMERICA
United States Constitution, as enforced by 42 U.S.C. § 1983." Id. at

21. In addition to the motion, Savilla filed an accompanying document styled "Second Amended Complaint." Id. at 37. This filing also

referred to both federal law and the federal constitution. The document is signed by counsel and bears both a "FILED" stamp dated July

31, 2002 and the initials of a clerk of the circuit court. Id. at 36. The

documents were served on Appellants’ counsel. 

On August 7, 2002, the Kanawha County Circuit Court granted

Savilla’s motion to file the Second Amended Complaint. The order

stated that Appellants’ counsel were authorized to accept service on

their clients’ behalf and that Appellants had 30 days within which to

file motions to dismiss. Later that same day, Appellants filed a notice

of removal pursuant to 28 U.S.C.A. §§ 1441, 1443, 1446 (West 1994

& Supp. 2003), asserting federal question jurisdiction under 28

U.S.C.A. §§ 1331, 1343 (West 1993). 

Two weeks after the removal of the case to the district court,

Savilla moved to remand the matter back to the state court, claiming

that no complaint asserting a federal question had ever been filed. On

November 7, 2002, without a hearing, the district court concluded that

removal was premature because, at the time the notice of removal was

filed, the state court had only granted leave to amend the complaint,

and no amended complaint had been filed. Based on this conclusion,

the district court remanded the case to the state court. 

II.

Appellants contend that the district court erred in determining that

the case was not removable at the time Appellants filed their notice

of removal. The parties disagree regarding whether we should review

the district court ruling de novo or for clear error. We need not

resolve this dispute, however, because the district court ruling cannot

survive even under the more deferential standard. 

Subject to exceptions not relevant here, a defendant may remove

an action from a state court to a federal court when the action could

have originally been brought in federal court. See 28 U.S.C.A. § 1441.

SAVILLA v. SPEEDWAY SUPERAMERICA 3
If the case stated by the initial pleading is not removable,

a notice of removal may be filed within thirty days after

receipt by the defendant . . . 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 . . . . 

28 U.S.C.A. § 1446(b). 

Here, the record establishes that Savilla filed the Second Amended

Complaint on July 31, 2002. The Second Amended Complaint was

stamped as "FILED" in the Kanawha County Circuit Court on July

31, 2002, and the state court docket sheet reflects the filing of the

Second Amended Complaint on that date. The record further reflects

that the Second Amended Complaint was served on Appellants’ counsel that same day. Thus, when the state court granted Savilla leave to

file the Second Amended Complaint on August 7, 2002, that order

operated to amend the complaint. Cf. Smith v. Ins. Co. of N. Am., 30

F.R.D. 540, 542 (M.D. Tenn. 1962) (interpreting Fed. R. Civ. P.

15(a), which is identical to the West Virginia rule applicable here, and

holding that when proposed amendments were served on the opposing

party, a court order allowing the amendments operated to amend the

pleadings; no further action by the party granted leave to amend was

required). And, the order granting Savilla leave to file the Second

Amended Complaint reflects that. See J.A. 41 (stating that Appellants

"do not concede that [Savilla] has pled a cognizable claim as the

defendants expressly deny the claims set forth in the Second Amended

Complaint (emphasis added)); id. (giving Appellants 30 days in which

to respond to the Second Amended Complaint and not discussing any

further action required of Savilla). 

Because Appellants’ notice of removal was filed after Savilla’s

complaint was amended to include federal civil rights claims, removal

was proper under 28 U.S.C.A. § 1446(b) and was not premature. We

therefore vacate the order of the district court remanding Savilla’s

claims to state court, and we remand for further proceedings.*

*Savilla argues that the document entitled "Second Amended Complaint" was not in fact an amended complaint, but rather merely a "draft"

4 SAVILLA v. SPEEDWAY SUPERAMERICA
VACATED AND REMANDED

complaint that was included with her motion seeking leave to amend. Br.

of Appellee at 5. However, the record clearly refutes that proposition.

The Second Amended Complaint was not identified as a "draft" in any

way. Indeed, Savilla’s counsel signed it. 

Savilla also maintains that removal was improper in light of the statutory prohibition against removal "more than 1 year after commencement

of the action," 28 U.S.C.A. § 1446(b). This limitation applies only in

diversity cases, however; removal here was based on federal question

jurisdiction and on the fact that the amended complaint alleged that Kannaird’s civil rights were violated, see 28 U.S.C.A. §§ 1331, 1343, 1443.

Finally, Savilla contends that we should affirm the remand order

because this suit raises mostly state law claims. This suggestion ignores

the fact that federal district courts have supplemental jurisdiction over

cases that include state law claims that are intertwined with federal ones.

See 28 U.S.C.A. § 1367 (West 1993). 

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