a matter of "removal procedure." If the one-year time limit is jurisdictional, however, the Court may order this case remanded at any time before final judgment. Although plaintiff did not make the argument (for reasons that are not apparent to this Court), the Court does believe that the one-year limit is jurisdictional, and hence this case must be remanded.
The Court begins with the plain language of § 1446(b). It reads as a blanket prohibition on removal of a diversity case more than one year after commencement of the action. Cf. Rothner v. City of Chicago, 879 F.2d 1402, 1409 (7th Cir. 1989) ("It also seems common ground that there is no express statutory provision forbidding the removal of this action and that the cause was timely removed in strict compliance with 28 U.S.C. § 1446.") (quoting Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344 n. 8, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976)) (emphasis the Seventh Circuit's). This is in contrast with the other time limits of § 1446(b), which do not read as nonwaivable restrictions. For example, § 1446(b) states that "notice of removal . . . shall be filed within thirty days" of defendant's receipt of pleadings that indicate the existence of federal jurisdiction. Similarly, when federal jurisdiction arises sometime after the commencement of a case, § 1446(b) states that "a notice of removal may be filed within thirty days." Neither of these time limits is phrased with the sort of definite proscription found in the 1988 amendment.
This construction is further supported by the legislative history of the 1988 Act. See H.R.Rep. No. 889, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.Code Cong. & Admin.News 5982. House Report No. 100-889 explained that the one-year limit is intended to prevent disruption of state court proceedings resulting from dismissal of a nondiverse party late in a case. See 1988 Cong. & Admin.News, at 6032-33. The report states: "Subsection (b)(2) amends 28 U.S.C. § 1446(b) to establish a one-year limit on removal based on diversity jurisdiction as a means of reducing the opportunity for removal after substantial progress has been made in state court. The result is a modest curtailment in access to diversity jurisdiction." Id. at 6032 (emphasis supplied). Cf. Rothner, 879 F.2d at 1418 ("It appears that Congress is fully aware that substantive proceedings may take place in state court prior to removal and yet has not [before the 1988 Act] directed courts to remand for that reason. Rather, in keeping with its desire to make the time for removal uniform and certain, it has [through the 1988 Act] placed a specific limit on the removal period in diversity cases.") (footnote omitted).
That Congress would intend the one-year requirement as a substantive limit on diversity jurisdiction is hardly surprising; the 1988 Act also raised the jurisdictional amount in diversity cases to in excess of $ 50,000 for the express purpose of reducing the case load of the federal courts. 1988 Cong. & Admin.News, at 6005-06.
Furthermore, the Court believes that to rule otherwise would disregard the plain language of § 1446(b), which commands that "a case may not be removed . . . more than 1 year after the commencement of the action." If the Court accepted Merrell Dow's view, litigants who abided the statute's prohibition against removal would have nothing to gain; it would always be best to remove and hope the other side failed to file a timely motion to remand. The effect would be to rewrite the statute to read: "A case may not be removed . . . more than 1 year after the commencement of the action, unless it is removed and the adverse party fails to file a timely motion to remand pursuant to § 1447(c)." The Court does not believe that Congress intended this result. To the extent that Gray v. Moore Business Forms, Inc., 711 F. Supp. 543 (N.D.Cal. 1989), indicates that the one-year limit is procedural, the Court respectfully declines to follow its reasoning.
The Court's conclusion does not render the thirty-day limit of § 1447(c) a nullity. In the Court's view, one of the "defect[s] in removal procedure" to which the statute refers is the untimely filing of a notice of removal under the thirty-day limit established by § 1446(b). The § 1446(b) time limit has always been strictly enforced. See Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir. 1982) ("Untimeliness is a ground for remand so long as the timeliness defect has not been waived."). Other procedural requirements are detailed in § 1446(a). The new thirty-day limit of § 1447(c) ensures that objections related to these sorts of matters are timely raised.
The sole discordant note is the placement of the one-year limit in a section titled "Procedure For Removal." In the Court's view, however, too much should not be made of this fact. Placement of the one-year limit in § 1446 was natural, since § 1446 is the place a litigant would look for the time limitations on removal. Moreover, Congress is not required (and can hardly be expected, given time pressures and the sheer volume of federal lawmaking) to write and amend its statutes with the kind of semantic exactitude valued by lawyers.
Accordingly, the Court orders this cause remanded to the Circuit Court of Cook County pursuant to § 1447(c).
Dated: September 20, 1989