IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Florence Betz, :

Plaintiff, : Case No. 2:12-cv-1122

v. : JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

Penske Truck Leasing 

Co., L.P., :

Defendant. :

REPORT AND RECOMMENDATION

This case is before the Court to consider a motion to remand

filed by Plaintiff Florence Betz, which has been referred to the

Magistrate Judge for a Report and Recommendation. (Doc. #10). 

For the reasons that follow, the Court recommends that the motion

be granted to the extent that it seeks remand of this case to the

Franklin County Court of Common Pleas but denied to the extent

that it seeks a fee award.

I. Introduction

On May 25, 2010, Ms. Betz brought this action in the

Franklin County Court of Common Pleas against Penske Truck

Leasing Co., L.P. (“Penske”), asserting breach of an oral and

written contract relating to a life insurance plan. The

insurance plan at issue is sponsored by Penske, which employed

Ms. Betz’s deceased husband. 

On March 1, 2011, Penske filed a motion for summary judgment

alleging that it was not a proper party to the lawsuit because it

is merely a plan administrator under the Employee Retirement

Income Security Act of 1974 (“ERISA”). Penske argued that

because ERISA provides no liability for plan administrators, it

was entitled to summary judgment. The Franklin County Court of

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Common Pleas granted Penske’s motion. 

Ms. Betz appealed the ruling on Penske’s motion for summary

judgment to the Ohio Tenth District Court of Appeals, also

arguing that the Court of Common Pleas abused its discretion in

failing to allow her to file an amended complaint. (Id. at 3). 

On appeal, Penske argued for the first time that ERISA preempted

Ms. Betz’s claims. Although the Court of Appeals held that ERISA

applied to Ms. Betz’s claims, it likewise found that Penske had

waived its arguments concerning ERISA preemption by failing to

assert them in the trial court. The Court of Appeals further

held that the trial court abused its discretion in denying Ms.

Betz’s motion to file an amended complaint. See Betz v. Penske

Truck Leasing Co., L.P., No. 11AP-982, 2012 WL 3133089 (10th

Dist. Aug. 2, 2012). 

Following the appellate decision, on November 9, 2012, Ms.

Betz filed an amended complaint alleging four additional state

law claims. On December 5, 2012, Penske filed a notice of

removal in this Court,invoking this Court’s federal question

jurisdiction. (Doc. #2).

On December 19, 2012, Ms. Betz filed a motion to remand and

for attorneys fees, arguing that Penske’s removal is untimely. 

(Doc. #10). Specifically, Ms. Betz asks that this action be

remanded to the Franklin County Court of Common Pleas because

Penske failed to file the notice of removal within thirty days

after receipt of the initial pleading. (Id.) Penske filed an

opposition to motion, arguing that the claims in the amended

complaint are the basis for the removal and, consequently, its

removal is timely. (Doc. # 11). Ms. Betz filed a reply in

support of her motion, contending that the “long expired right of

removal was not revived by the filing of a first amended

complaint that merely added additional state law claims.” (Doc.

#14 at 1). For the reasons that follow, this Court agrees with

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Ms. Betz that remand is appropriate.

II. Discussion

The issue before this Court is whether the removal is

timely. Removal must be effected within thirty days of the

“initial pleading” in state court. 28 U.S.C. §1446(b). If the

case stated by the initial pleading is not subject to removal,

removal must be effected within thirty days of the pleading “from

which it may first be ascertained that the case is one which is

or has become removable.” Id. A failure to remove the case

within the thirty-day period waives the right, making a

subsequent attempt to remove the case improper. See Davidson v.

Life Ins. Co. of North America, 716 F. Supp. 674, 675 (D. Mass.

1989). 

“The Sixth Circuit has held that the statute conferring

removal jurisdiction is to be construed strictly, because removal

jurisdiction encroaches on a state court’s jurisdiction.” 

Mitchell v. Lemmie, 231 F. Supp 2d 6923, 697 (S.D. Ohio 2002). 

The removing party bears the burden of demonstrating removal

within thirty days, and a failure to do so results in a bar to

removal. See Thomas v. Columbia Sussex, No. 2:08-cv-182, 2008 WL

2303046, at *2 (S.D. Ohio May 30, 2008). Accordingly, the Court

must determine when the case became removable. 

Penske argues that Ms. Betz’s addition of four new claims in

the amended complaint provided a proper basis for removal. 

Because Penske filed its notice of removal within thirty days of

the filing of the amended complaint, Penske contends that the

removal is timely. 

Under the relevant law, however, once the thirty-day period

for removal has elapsed, it is not revived by the addition of new

state law claims based on the same facts alleged in the original

complaint. See, e.g.,Dunn v. Gaiam, Inc., 166 F. Supp. 2d 1273

(C.D. Cal. 2001) (holding that addition of a claim did not “so

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fundamentally alter the nature of the case as to revive” a waived

right to removal); Davidson, 716 F. Supp. at 675 (finding that

remand was proper because the original complaint was preempted by

ERISA and the amended complaint did not file a new, independent

basis for purposes of the thirty-day period for removal). Stated

differently, the thirty-day period for removal is only subject to

revival if an amendment provides a new basis for removal or

changes “the character of the litigation so as to make it

substantially a new suit.” Pearson v. Gerber Prods. Comp., 788

F. Supp. 410, 412-13 (W.D. Ark. 1992) (citation omitted). 

Because the state law claims in the original complaint were

preempted by ERISA, this case was removable within thirty days of

being filed on May 25, 2010. Ms. Betz’s addition of four more

state law claims that are likewise preempted by ERISA does not

change the essential nature of the litigation. See Davidson, 716

F. Supp. at 676 (“Plaintiff’s addition of an ERISA claim to a

lawsuit already preempted by ERISA does not change the essential

nature of the litigation”). Here, Penske concedes that the new

claims arise from the facts alleged in original complaint,

stating that “[a]ll claims alleged in this action arise out of

the same common nucleus of operative facts; namely, Plaintiff’s

claim to additional life insurance benefits under an ERISA plan .

. . .” (Doc. #11 at 5). By failing to remove the case within

the thirty days after the original complaint, Penske waived its

right to removal. Under these facts, that right was not revived

by the filing of the amended complaint. Consequently, Penske has

failed to satisfy its burden of demonstrating that the removal is

timely.

Although the Court recommends that the remand be granted on

the grounds that it is untimely, it does not recommend that the

improper removal warrants a fee award. An order remanding the

case “may require the payment of just costs and any actual

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expenses, including attorney fees, incurred as a result of

removal.” 28 U.S.C. §1447(c). A fee award is granted only if,

in the Court’s discretion, unusual circumstances exist or the

removing party lacked an objectively reasonable basis for seeking

removal. See Martin v. Franklin Capital Corp., 546 U.S. 132, 141

(2005) (stating that “the standard for awarding fees should turn

on the reasonableness of the removal”); see also Warthman v.

Genoa Township Bd. of Trustees, 549 F.3d 1055, 1059-60 (6th Cir.

2008)(noting that fee awards fall “squarely within the discretion

of the district court” but are “subject to the guidance set forth

by the Supreme Court” in Martin, 546 U.S. at 141). Whether the

circumstances presented are unusual and thus warrant an award of

fees is within the Court’s discretion, and an example includes

the failure to disclose facts necessary to determine

jurisdiction. See Martin, 546 U.S. at 141. Because the Court

finds that Penske had an objectively reasonable basis for

removing the case to federal court and no unusual circumstances

exist, the Court recommends that Ms. Betz’s motion be denied to

the extent that it seeks a fee award.

III. Conclusion

For the reasons set forth above, the Court recommends that

Ms. Betz’s motion to remand be granted in part and denied in

part. (Doc. #10). The Court recommends the motion be granted to

the extent that it seeks remand of this case to the Franklin

County Court of Common Pleas. The Court recommends that the

motion be denied to the extent that it seeks a fee award.

IV. Procedure on Objections

If any party objects to this Report and Recommendation, that

party may, within fourteen days of this Report, file and serve on

all parties written objections to those specific proposed

findings or recommendations to which objection is made, together

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with supporting authority for the objection(s). A judge of this

Court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which

objection is made. Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or

may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Terence P. Kemp 

United States Magistrate Judge

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