United States District Court, N.D. Mississippi, Greenville Division
ORDER DENYING REMAND
M. BROWN UNITED STATES DISTRICT JUDGE
the Court is Linda Robinson's motion to remand. Doc. #7.
September 29, 2017, Linda Robinson filed a complaint in the
Circuit Court of Bolivar County against North Bolivar
Consolidated School District. See Doc. #6-24 at 1.
On November 2, 2018, after more than a year of litigation,
Robinson moved for leave to file an amended complaint to
“specifically assert a claim under 42 U.S.C. §
1983 for the taking of property and/or termination of a
contract without due process of law ….” Doc.
#6-17 at 1. One week later, North Bolivar's counsel sent
an e-mail to Robinson's counsel stating that North
Bolivar did not oppose the motion to amend and that
“[i]f you will prepare an order for us to approve as to
form, we can get it before the Court, and hopefully avoid the
need for a hearing.” Doc. #7 at Ex. 3. Ultimately, on
January 22, 2019, the Circuit Court granted as unopposed
Robinson's motion to amend. Doc. #6-19. Robinson filed
her amended complaint, which includes a § 1983 claim,
the same day.Doc. #6-21.
February 14, 2019, North Bolivar, alleging federal question
jurisdiction based on the filing of the amended complaint,
removed Robinson's state court action to the United
States District Court for the Northern District of
Mississippi. Doc. #1. Robinson filed a motion to remand on
March 5, 2019. Doc. #7. North Bolivar responded in opposition
to the motion on March 12, 2019. Doc. #11. Robinson replied
on March 19, 2019. Doc. #13.
to 28 U.S.C. § 1446(b)(3), a notice of removal must be
filed “within 30 days after receipt by the defendant,
through service or otherwise, 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.” In her motion to remand, Robinson
does not dispute that this Court has jurisdiction over her
amended complaint. See Doc. #7 at 2. Rather, she
contends the removal was untimely because it was filed more
than thirty days after her motion to amend. Id.
North Bolivar argues the removal was timely because “it
is the state court's order allowing the amendment that
triggers the removal period.” Doc. #12 at 2.
law on removability (and thus the trigger for removal) based
on a proposed amended complaint which implicates federal
jurisdiction is inconsistent. Most courts have conditioned
removability on the granting of the motion to amend.
See Jackson v. Bluecross & Blueshield of Ga.,
Inc., No. 4:08-cv-49, 2008 WL 4862686, at *2 (M.D. Ga.
Nov. 10, 2008) (“The majority rule appears to be that
when a state-court plaintiff files a motion to amend a
complaint to assert federal subject matter jurisdiction, a
defendant cannot remove the case until the state court judge
grants the motion to amend.”). However, some courts
have held the case becomes removable when the motion to amend
is filed. See, e.g., Morrison v. Nat'l Ben.
Life Ins. Co., 889 F.Supp. 945, 948 (S.D.Miss. 1995)
(“Whether or not the lower court has approved
Plaintiffs' Motions to Amend, the Motions certainly
constitute other paper from which it may first be ascertained
that the case is one which is or has become
removable.”) (quotation marks omitted). Others have
required the amended complaint be filed or otherwise made
effective. See McDonough v. UGL UNICCO, 766
F.Supp.2d 544, 547 (E.D. Pa. 2011) (“Unless and until
the state court grants Plaintiff's motion for leave to
amend and that amended complaint becomes effective, the
operative complaint in this matter-the First Amended
Complaint-simply does not state a federal claim or otherwise
give rise to federal jurisdiction.”).
relevant statutory language “speaks of a motion or
other paper that discloses that the case is or has become
removable, not that it may sometime in the future become
removable if something happens.” Sullivan v.
Conway, 157 F.3d 1092, 1094 (7th Cir. 1998). Thus,
“the better view … is that the time limit begins
to run from the actual and effective amendment of the
complaint.” Freeman v. Blue Ridge Paper Prods.,
Inc., 551 F.3d 405, 409-10 (6th Cir. 2008). Accordingly,
a focus on the date the complaint was actually
amended strikes this Court as the most correct approach.
is no dispute the jurisdiction-triggering amended complaint
here was filed (and thus effective) on January 22, 2019, or that
the notice of removal was filed less than thirty days later.
Accordingly, the notice of removal was timely and
Robinson's motion for remand  is
 Contrary to this Court's local
rules, this exhibit is part of the same document Robinson
filed as her motion to remand. See ...