1

 As indicated in a previous Order (Doc. 9), the Court uses the title “the Oakwood entities” as

a collective designation for the following defendants: OHC Liquidation Trust, as successor in interest to

Oakwood Mobile Homes, Inc.; Oakwood Homes Corporation and HBOS Manufacturing, Inc (as

successor in interest to Homes by Oakwood, Inc.) and Reorganized Sale OKWD, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

TRACY B. LOCKETT, as father and next friend )

of TRACY B. LOCKETT, JR., deceased, )

)

Plaintiff, )

v. ) Civil Case No.: 05-510-BH-D

)

OAKWOOD HOMES CORPORATION; )

OAKWOOD HOMES, INC.; REORGANIZED )

SALE OKWD, INC.; OAKWOOD MOBILE )

HOMES, INC.; HOMES BY OAKWOOD, INC.; )

et al. )

)

Defendants. )

ORDER

This matter is before the Court on Plaintiff’s Motion (Doc. 13) to Remand and Brief(Doc. 14) in

support. In response (Docs. 17 &18) to Plaintiff’s motion, Defendants seek the Court to abstain from

rulinguntilthe DelawareBankruptcyCourt enters a finalorder concerning whether plaintiff’s claims against

Defendant “the Oakwood entities”mayproceed.1 Before addressing this issue, however, the Court does

note that Defendants have not objected to Plaintiff’s voluntary dismissal with prejudice of Defendants

ClaytonHomes,Inc. and ClaytonHomes ofDelaware,Inc. Therefore, Plaintiff’s Motion (Doc. 12) is due

to be and hereby GRANTED and Defendants Clayton Homes,Inc. and Clayton Homes of Delaware,

Inc. are due to be and hereby DISMISSED from this action with prejudice and, unless otherwise

Case 2:05-cv-00510-BH-D Document 20 Filed 10/25/05 Page 1 of 3
2

 The 30 day time limit also applies to removal based upon bankruptcy jurisdiction. F.R.Bk.P.

9027(a)(3). 

agreed upon, with parties to bear their own costs. 

Motion to Remand

On May 16, 2005, Plaintiff Lockett filed a Complaint in the Circuit Court of Marengo County

alleging wrongful death product liability against Defendants Black Warrior Membership Corporation

(hereinafter, “BlackWarrior”), the Oakwoodentities,RandyAllisonandRodneySanspree. Black Warrior

wasserved onMay17, 2005; the Oakwood entities and Sanspree were served onMay18, 2005; Allison

was served on May 23, 2005. On July 29, 2005, Plaintiff amended his complaint to bring claims against

ClaytonHomes,Inc. and ClaytonHomes Delaware, Inc (hereinafter “the Clayton entities”). The Clayton

entities removed the entire case to this Court. The only basis cited for removal jurisdiction by the Clayton

entities was under 28 U.S.C. §1452(a) and §1334(b) alleging that all of Plaintiff’s claims were related to

the Oakwood entities’ Chapter 11 bankruptcy proceeding. 

Pursuant to 28 U.S.C. §1446, defendants have thirtydays aftertheyreceive service to remove the

action from a State Court to a district court ofthe United States.2 Of the Defendants named in the original

Complaint, the last service occurred on May 23, 2005. Therefore, if any of these parties felt that the

original Complaint contained an issue that required federal jurisdiction, they had to collectively file for, or

consent to, removal at least before June 23, 2005. They failed to do so. It was only upon Plaintiff’s

service of the Clayton entities in August 2005 that the parties sought to remove the instant action to this

court. However, the basis for this removalwasthe status ofthe Oakwood entities as Chapter 11 debtors.

The Oakwood entities’status existed at the time of their service and during the subsequent thirtydays they

had to remove this action based on that status. Since Defendants failed to remove during the statutorily

Case 2:05-cv-00510-BH-D Document 20 Filed 10/25/05 Page 2 of 3
established time period, the Court findsthat theyeffectivelywaived the option. Therefore, the Court finds

that Defendants removal is procedurally defective. Furthermore, the Court finds that since the parties

initiating removal, the Clayton entities, have been jointly dismissed from this action, they will not be

prejudiced by this ruling. Plaintiff’sMotion(Doc. 13) to Remand is due to be and hereby GRANTED.

This matter is to be remanded to the Circuit Court of Marengo County. 

The Court also declines Defendants’ request to abstain fromrulingonthe issue ofremand untilthe

pending issue before the Delaware Bankruptcy Court becomesfinal. As best the Court can tell, the issue

before the DelawareBankruptcyCourt will not have any influence onthis Court’sjurisdiction. Rather, the

bankruptcy court only seems to be dealing with the issue of the which assets of the Oakwood entities, if

any, Plaintiff may be able pursue. Remanding this matter to state court will not negatively affect these

issues. 

So ORDERED, this 25th day of October, 2005.

s/ W. B. Hand

SENIOR DISTRICT JUDGE

Case 2:05-cv-00510-BH-D Document 20 Filed 10/25/05 Page 3 of 3