The plaintiff brought an action for alleged development of mesothelioma as a result of asbestos exposure on April 15, 2014. After the plaintiff passed on July 7, 2015, his wife filed a second amended complaint, adding a wrongful death and survival claim on October 28, 2015. The defendant removed the case based on diversity jurisdiction and the plaintiff’s moved to remand as untimely.
Although the removal statute requires removal within 30 days from date of service of the complaint, the defendant relied upon two arguments that removal was proper. First, the defendant contended that the amendment of the complaint adding the wrongful death and survival claims reset the clock for purposes of removal. The court was not persuaded and reminded that courts are to strictly construe against removal based on jurisdiction. In fact, the court cited the Ninth Circuit’s decision in McAtee v. Capital One, F.S.B. 479 F.3d 1143 (9th Circuit 2007). McAtee explicitly stood for the proposition that an amendment does not change the commencement date of the action. As a second argument, the defendant relied upon cases including Groom v. Bangs, 153 Cal. 456 (1908), which held that adding a wrongful death claim is a new action. The court was not persuaded, and noted that the cases the defendant relied upon “pre-date amendments to California law that a personal injury action did not abate on a person’s death.” Each case cited by the defendant that did not pre-date was clearly distinguishable from the case at hand. Although the defendant argued that California Code 583.10 requires trial to occur within 5 years after an action is commenced the court was still unpersuaded. The defendant relied upon Brumley v. FDCC California, Inc. 156 Cal. App. 4th 312, 67 Cal. Rptr. 3d 292 (2007), which held that a newly added wrongful death claim did not have to be tried within 5 years of the filing of the original complaint.
The court disagreed and found that the same reasoning did not apply. The injuries claimed in Brumley’s wrongful death claim were different than those in the original complaint. The only issue at hand for the instant case was jurisdiction, federal or state, according to the court. Citing McAtee again, the court stated the Ninth Circuit “specifically rejected a relation back approach to determine when a case commenced.” Moreover, the court concluded the defendant suffered no prejudice from remand as the facts remained the same. Accordingly, the court found the defendant’s removal untimely and remanded to state court.