IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RANDY RITMILLER, 3:14-cv-02011-BR

Plaintiff, ORDER

v.

MICHAEL SPICER and SPIRIT

ENTERPRISES OF OREGON, INC.,

an Oregon corporation,

Defendants.

BROWN, Judge.

This matter comes before the Court on Plaintiff Randy

Ritmiller’s Motion (#5) to Remand Case to State Court. On

January 10, 2014, the Court heard oral argument on the Motion. 

For the reasons stated on the record and as follows, the Court

GRANTS Plaintiff’s Motion and REMANDS this matter to Multnomah

County Circuit Court.

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BACKGROUND

Plaintiff filed this action in Multnomah County Circuit

Court on June 20, 2013. In his complaint, Plaintiff raised nine

claims against various combinations of Defendant Michael Spicer

and former Defendants Amy Spicer, Mary Lou Spicer, Justin Spicer,

and Andrew Spicer. 

Plaintiff and former Defendants Amy Spicer, Mary Lou Spicer,

Justin Spicer, and Andrew Spicer are residents of Oregon. 

Michael Spicer is a resident of Washington.

On March 7, 2014, the Multnomah County Circuit Court

dismissed each of the claims in Plaintiff’s complaint against Amy

Spicer, Mary Lou Spicer, Justin Spicer, and Andrew Spicer and

some of the claims against Michael Spicer. The only claims

remaining after the state court’s order were Claims Five, Seven,

and Eight against Michael Spicer. Although the state court

dismissed some claims without prejudice and granted Plaintiff

leave to amend his complaint within ten days, Plaintiff did not

do so within that period.

The parties continued litigating in Multnomah County Circuit

Court until December 5, 2014, when Plaintiff filed a first

amended complaint in which he alleged several new claims against

Michael Spicer and added Spirit Enterprises of Oregon, Inc., as a 

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party defendant. On December 16, 2014, Defendant Michael Spicer

removed the action to this Court on the basis of diversity

jurisdiction pursuant to 28 U.S.C. § 1332. On December 17, 2014,

Plaintiff filed this Motion.

DISCUSSION

In support of his Motion, Plaintiff asserts removal is

untimely under 28 U.S.C. § 1446(c)(1) because Defendant seeks to

remove this matter after it has been pending in the state court

for more than one year and because Defendant could have

ascertained this action was removable when the Multnomah County

Circuit Court dismissed the claims against the other defendants

in state court. Defendant Michael Spicer, however, contends

removal is appropriate because Spirit Enterprises is a nominal

defendant and, therefore, the true parties are completely

diverse, an equitable exception excuses Defendant from

noncompliance with the one-year limitation in § 1446(c)(1), and

removability only became ascertainable when Plaintiff filed his

first amended complaint in the state action.

28 U.S.C. § 1446(b)(3) provides a defendant may remove a

case that was not initially removable within 30 days after the

defendant receives “a copy of an amended pleading, motion, order 

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or other paper from which it may first be ascertained” that the

case is removable. Section 1446(c)(1), however, limits the timeframe in which a case is removable under § 1446(b)(3) and

provides: 

A case may not be removed under subsection (b)(3) on

the basis of jurisdiction conferred by section 1332

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.

Although Defendant contends bad faith and dilatory

litigation tactics by Plaintiff while represented by former

counsel in state court excuse Defendant from the one-year

limitation in § 1446(c)(1), Defendant (as noted during oral

argument) has not presented any evidence that Plaintiff's alleged

bad-faith actions in state court prevented Defendant from timely

removing this action. Accordingly, because there is not any

basis to excuse Defendant from the one-year time limit prescribed

in § 1446(c)(3), Defendant's failure to remove this action within

one year of the commencement of this action renders Defendant's

late removal ineffective.

On this record the Court concludes removal is improper and,

accordingly, remands this matter to Multnomah County Circuit

Court.

CONCLUSION

For these reasons, the Court GRANTS Plaintiff’s Motion (#5)

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to Remand Case to State Court and, accordingly, REMANDS this

action to Multnomah County Circuit Court.

IT IS SO ORDERED.

DATED this 12th day of January, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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