Howard v. Riley et al

Filing 16

ORDER denying 4 Motion to Remand and adopting the Magistrate Judge's Report and Recommendations 8 . Entered by Chief Judge James E. Shadid on 8/14/2013. (RK, ilcd)

Howard v. Riley et al

Doc. 16

E-FILED

Wednesday, 14 August, 2013 03:01:48 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TIFFANY HOWARD,
Plaintiff,
v.
KEVIN RILEY, individually and in his
official capacity as an officer of the
Normal Police Department;
CITY OF NORMAL, ILLINOIS, and
ADVANTAGE AUTO SALES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 13-CV-1231

ORDER
On June 26, 2013, United States Magistrate Judge Byron S. Cudmore issued a Report and
Recommendation [#8] in this matter pertaining to Plaintiff, Tiffany Howard’s, Motion to
Remand [#4] and Defendant, Kevin Riley’s, Motion in Opposition [#6]. More than 14 days have
elapsed since the filing of the Report & Recommendation, and no objections have been made.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Lockert v. Faulkner, 843 F.2d 1015 (7th Cir.
1988); and Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). As the
parties failed to present timely objections, any such objections have been waived. Id.
The details of this case are that Howard filed this action in the Circuit Court of McLean
County, Illinois alleging Defendants violated her civil rights pursuant to 42 U.S.C. §1983. On
May 20, 2013, Defendants Riley and the City of Normal filed a Notice of Removal based on
federal question jurisdiction. Riley and the City of Normal consented to the removal, though
Advantage never did. As of the date of the notice, Advantage had been sent a waiver of service,
but it had not yet been returned. On June 4, 2013, Advantage’s agent signed the waiver and it

Dockets.Justia.com

was filed on June 7, 2013. Advantage otherwise had not entered an appearance in this case or
been served.
The basis of the Motion to Remand was that Advantage did not consent to the removal.
28 U.S.C. § 1446(2)(B) indicates that all defendants who have been properly joined and served
must join in or consent to the removal of the action. However, as Advantage had not yet been
served at the time of removal, its consent was not necessary. Accordingly, Magistrate Cudmore
properly found that the removal was not ineffective. Further, Magistrate Cudmore properly held
that simply sending a waiver of service does not constitute service of process and Advantage’s
consent was not required as of May 20, 2013, the date the notice of removal was filed.
Accordingly, this Court ADOPTS the Report and Recommendation [#8]. The Motion to
Remand [#4] is therefore DENIED.

ENTERED this 14th

day of August, 2013.

/s/ James E. Shadid
James E. Shadid
Chief United States District Judge