NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

DAN LEAHY, : CIVIL ACTION NO. 11-976 (MLC)

:

Plaintiff, : O P I N I O N

:

v. :

:

I-FLOW CORPORATION, et al., :

:

Defendants. :

 :

THE PLAINTIFF commenced this action in state court on March

4, 2010. (Dkt. entry no. 1, Rmv. Not., Ex. D, Compl. at 1.) The

defendants thereafter removed the action (“First Removal”). See

No. 10-2503 (MLC), dkt. entry no. 1, 5-14-10 Rmv. Not. The Court

remanded the action for lack of jurisdiction under 28 U.S.C. §

(“Section”) 1332; the plaintiff and one defendant, Astrazeneca LP

(“ALP”), were deemed to be New Jersey citizens. See id., dkt.

entry nos. 65-66, 12-21-10 Op. & 12-21-10 Order & J.

A STIPULATION was entered in state court on February 17, 2011

(“Stipulation”), wherein the plaintiff agreed to the dismissal of

the Complaint insofar as it is asserted against ALP “with

prejudice”. (Rmv. Not., Ex. A, 2-17-11 Stip.) The remaining

defendants removed the action for the second time on February 22,

2011, pursuant to Section 1332, asserting that there is now

diversity of citizenship (“Second Removal”). (See Rmv. Not.)

THE SECOND REMOVAL appears to be proper, as (1) it was

effected within (a) 30 days of the Stipulation’s entry, and (b)

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one year of the action’s commencement in state court, and (2) the

dismissal of the claims against ALP is with prejudice, thus making

it unlikely that the plaintiff will reinstate those claims. See

28 U.S.C. § 1446(b) (if action not initially removable within 30

days of defendant’s receipt, then may be removed within 30 days

after receipt of amended pleading, order, or other paper causing

action to “become removable”, but “case may not be removed on the

basis of jurisdiction conferred by section 1332 . . . more than 1

year after commencement of the action”); Benson v. SI Handling

Sys., 188 F.3d 780, 782-83 (7th Cir. 1999) (“A premature removal

may lead to a perfectly justified remand; but when matters change

— for example, by dismissal of a party whose presence spoiled

complete diversity of citizenship . . . — the case may be removed,

provided only that it is less than one year old.”); see also

Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009) (second removal

notice allowed if remanded action comes to be within federal

court’s jurisdiction, as removal statute does not categorically

prohibit filing second removal notice after remand).

THE COURT has the inherent power to control the docket. 

Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Rolo v. Gen. Dev.

Corp., 949 F.2d 695, 702 (3d Cir. 1991). The claims among the

remaining parties will proceed under the Civil Action Number

assigned to the action pursuant to the Second Removal, and not 

2

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the Civil Action Number assigned pursuant to the First Removal. 

The Court will issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: May 23, 2011

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