Davis v. Merck & Co., Inc., 357 F.Supp.2d 974 (E.D.Tex. Feb 24, 2005) (NO. 9:04-CV-229)
Judge: Ron Clark
Holding: Plaintiff's Motion to Remand DENIED
The defendant removed this case more than one year after it was filed, asserting that the equitable tolling of the statutory one year limitation to removal created by the Fifth Circuit in Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir.2003) should be allowed because the plaintiff Plaintiff dismissed the nondiverse defendant doctor after a year had passed. (The defendant had previously removed the case and Judge Davis granted the motion to remand, holding that there was a possibility of recovery against the in-state defendant). Judge Clark held that although there was no evidence of an explicit agreement for dismissal as in tedford, the evidence established that the Plaintiff never intended to pursue her claims against Dr. Haeckler, and voluntarily abandoned those claims, and therefore the equitable tolling exception should apply.