O'Leary v. Simply Thick, LLC et al, No. 1:2013cv01015 - Document 14 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 9/17/2013. (nmcc )
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L IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA SEP I 7 2013 Alexandria Division CLERK. U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA MELISSA C. O'LEARY, as Administrator and Personal Representative ofthe Estate ofNolan O'Leary, deceased, Plaintiff, v. Case No. l:13-cv-1015 SIMPLY THICK, LLC; THERMO PAC, LLC; AMERIQUAL GROUP, LLC; H.J. HEINZ COMPANY; and INOVA HEALH CARE SERVICES, Defendants. MEMORANDUM OPINION At issue in this removed state action is whether remand is required on the ground that diversity ofcitizenship did not exist at the time ofremoval. The removing defendants point out that the state court directed plaintiff to serve the non-diverse defendant within two weeks "'or else the case shall be severed as to [the non-diverse defendant.]" O'Leary v. Simply Thick, LLC, el «/., 2012-16995 (Fairfax Cir. Ct. July 19, 2013) (Order). Given this, the removing defendants argue thatseverance occurred automatically when the non-diverse defendant was not properly served within the allotted time. Plaintiffcounters (1) that no automatic severance occurred; (2) that the state court order contemplated not automatic severance if service was not timely effected, but return of the case to the state court's docket instead; and (3) in any event, that service of the complaint without process was timely effected and whether this was proper service given the non-diverse defendant's waiver of any service defect was for the state court to resolve. 1
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