IN RE THE MATTER OF THOMAS DALE HINOTE AND CHRISTOPHER EARL CONWAY, 179 F.R.D. 335 (S.D. ALA. 1998)

Former employees filed petition in state court for discovery before action, alleging that they expected to be plaintiffs in an action for injuries and damages sustained by them resulting from alleged misrepresentations by their former employer regarding participation in a retirement plan. They sought leave to depose agent of life insurance company and another individual. After removal by the prospective deponents, petitioners moved to remand. The District Court, Butler, Chief Judge, held that state court proceeding pursuant to Alabama Rule of Civil Procedure permitting a party to obtain discovery before an action is commenced by filing a verified petition in circuit court is not a "civil action" within meaning of removal statutes, and thus is not subject to removal. Motion granted.