Maiden v. Liberty Mutual Insurance Company et al
Filing
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ORDER AND OPINION entered by Chief Judge James E. Shadid on 6/3/2016: IT IS ORDERED that the Plaintiff's Motion 6 to Remand is Granted in Part, and Plaintiff's 7 Motion for Sanctions is Denied. The Motion 6 being granted in part remands the matter to the Circuit Court of Peoria County in Peoria, Illinois, and not to Madison County, Illinois.This matter is now terminated. (SEE FULL WRITTEN ORDER AND OPINION) (JRK, ilcd)
E-FILED
Friday, 03 June, 2016 08:59:01 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ETHAN D. MAIDEN,
Plaintiff,
v.
LIBERTY MUTUAL INSURANCE
COMPANY and JACK COOPER
TRANSPORT COMPANY, INC.,
Defendants.
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Case No. 15-1479
ORDER AND OPINION
This matter is now before the Court on Plaintiff’s Motion [6] to Remand to the Circuit
Court of Madison County, Illinois, and Motion [7] for Sanctions. For the reasons set forth below,
Plaintiff’s Motion [6] to Remand is Granted in Part, and Plaintiff’s Motion [7] for Sanctions is
Denied. The Motion [6] being granted in part remands the matter to the Circuit Court of Peoria
County in Peoria, Illinois, and not to Madison County, Illinois.
BACKGROUND
The basis for this action stems from a July 11, 2007, motor vehicle accident resulting in
the filing of a personal injury case in Peoria County Circuit Court. Gail and Kurt Karnes were
injured in a collision with a truck driven by Ethan Maiden, an employee for Jack Cooper
Transport Company, Inc. (“Jack Cooper”). Liberty Mutual Insurance Company (“Liberty
Mutual” or “Liberty”) insured Jack Cooper. The Karnes’ filed a personal injury action in Peoria
County against both Maiden and Jack Cooper, and Liberty Mutual hired counsel to defend them.
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Maiden also had separate counsel for a traffic ticket connected with the accident. During this
time, Jack Cooper terminated Maiden’s employment.
The attorney Liberty Mutual provided for Maiden, Greg Cerulo, informed Liberty Mutual
of an apparent conflict of interest between defendants Maiden and Jack Cooper, as Maiden
asserted that the accident resulted from equipment failure and Jack Cooper claimed that the
equipment was functioning properly. Cerulo also indicated that information was shared with Jack
Cooper’s attorney, Stephen Heine. Defendant Maiden hired Brian Wendler as his own counsel
for the traffic citation and the personal injury defense after learning of the conflict. Liberty
Mutual declined to pay Maiden’s counsel because it had already provided Cerulo as counsel for
him. Wendler and Cerulo both represented Maiden in the Peoria County action.
When the Karnes’ amended their complaint to add punitive damages, Liberty informed
Maiden that punitive damages were not covered under the policy. Maiden then filed a
counterclaim against Jack Cooper and their affiliate, Auto Handling Corporation, alleging
retaliatory discharge and spoliation. Maiden also sought attorney’s fees for both the McLean
County traffic citation and the personal injury action in Peoria County. In 2011, Liberty settled
with the Karnes’, but the counterclaim remained pending. Maiden also filed a motion for
attorney’s fees in the Peoria County action against Jack Cooper and its insurer, seeking to
reimburse Wendler for bankruptcy and trustee fees. On October 13, 2011, the Peoria County
court denied Maiden’s claim for attorney’s fees against Jack Cooper. In May of 2014, Maiden
filed an amended counterclaim adding additional counts and allegations against Jack Cooper for
refusing to pay fees and costs for Maiden’s chosen counsel.
On November 3, 2014, Maiden, through his current counsel, Ronald Roth, filed an action
in Madison County against Jack Cooper and Liberty Mutual alleging breach of contract,
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violation of Section 155 of the Illinois Insurance Code, and conspiracy between Jack Cooper and
Liberty Mutual. Liberty Mutual was served on November 17, 2014. The complaint sought to
recover attorney’s fees for the defense of the underlying personal injury action as well as fees
under Section 155 of the Illinois Insurance Code. Jack Cooper and Liberty Mutual filed motions
to dismiss pursuant to 735 ICLS 5/2-619(a)(3), and alternatively moved to transfer the case to a
more convenient forum because the Peoria County action remained pending.
In response to the defendants’ motions, Maiden moved to withdraw his claim for
attorney’s fees in the Peoria County action and submitted an affidavit from Wendler attempting
to clarify the fees requested. That withdrawal states that Maiden does not seek to recover
attorney’s fees in the Peoria County action, “as such has already been ruled not recoverable
under the pleadings herein,” and that Maiden was pursuing a claim against Liberty Mutual for
those fees in Madison County. Rather, Maiden’s withdrawal stated that he was seeking fees for
the traffic citation defense. Liberty Mutual challenged the Wendler Affidavit as inconsistent with
the Peoria County pleadings.
On October 28, 2015, the Madison County court issued an order dismissing Jack Cooper
as a defendant because the Peoria County court already denied Maiden’s claim against Jack
Cooper (but not as to Liberty Mutual) for attorney’s fees in the personal injury action. See E.C.F.
Doc. 6, Ex. 1, at 4 (noting that “plaintiff cannot amend his way out of the request given that the
court in Peoria denied an attorney fee request for Wendler previously”). That order also granted
Liberty Mutual’s request to transfer the case to Peoria County, noting that “[w]hile the case
involves the attorney’s fees of Mr. Wendler, a Madison County resident, Mr. Wendler is not the
plaintiff to the action and his interests are not the primary concern of the litigation.” Id. at 7.
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On November 25, 2015, Liberty Mutual filed a notice of removal with this Court, and
filed a copy of that notice with the Madison County court on December 7, 2015. On November
30, 2015, Maiden filed a motion to reconsider with the Madison County court. In that motion,
Maiden argued that “if the case is transferred to Peoria, then it is likely that the case will be
consolidated with existing litigation in Peoria. However, if that is the case, then Defendants in
this case, Liberty Mutual and Jack Cooper Transport, will be able to obtain the file of attorney
Brian Wendler because his file is relevant on the issue of whether his charges are reasonable.”
Therefore, Maiden’s motion reasoned, “by moving the case to Peoria, the Court creates a
substantial risk that Jack Cooper and its insurer will use Wendler’s file in both cases” because the
same law firm will be employed in both cases. E.C.F. Doc. 6, Ex. 2, at 2.
Liberty Mutual’s November 25, 2015, notice of removal incorrectly stated the residency
of the parties as the basis for this Court’s subject matter jurisdiction. Thus, this Court ordered
Liberty to file an amended notice of removal adequately alleging the basis for this Court’s
jurisdiction. E.C.F. Doc. 2. Liberty filed the amended notice of removal on December 9, 2015.
On January 5, 2016, Maiden filed a motion to remand with this Court.
Maiden’s motion to remand argues that the motion to reconsider operated to stay the
enforcement of the Madison County order transferring the case to Peoria County. Thus, Maiden
contends that this Court lacks jurisdiction to hear the case and must remand it to Madison
County. E.C.F. Doc. 6, at 2. On January 19, 2016, Maiden filed a supplemental Motion to remand
and for sanctions. E.C.F. Doc. 7. In that motion, Maiden argues that although the Madison
County court entered an order transferring the case to Peoria County on October 28, 2015,
Liberty Mutual did not pay the transfer fee until December 14, 2015, and the case was not
transferred until December 23, 2015. Maiden argues that since the transfer was not complete
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when he filed the motion to reconsider, the case was still pending in Madison County. Because
the case was still pending there, Maiden alleges, removal was improper because Madison County
is located in the Southern District of Illinois. See E.C.F. Doc. 7.
From the background of this case one can see that the facts would constitute a difficult
law school exam question as to venue and jurisdiction. As such, this Court ordered the parties to
submit supplemental briefs to address the propriety of the removal as it related to this Court’s
jurisdiction and the procedural requirements under the applicable removal statutes. This Order
follows.
STANDARD OF REVIEW
A civil action brought in a state court may be removed by a defendant or defendants to
the district court of the United States for the district and division embracing the place where such
action is pending. 28 U.S.C. § 1441(a). An action that is removed based on diversity of
citizenship is improper if any defendant is a citizen of the state in which the action is brought. §
1441(b)(2). Additionally, § 1446(c) places “a one-year limit on removal of diversity cases in
situations where a case is not initially removable but becomes removable at a later stage in the
proceedings.” Rothner v. City of Chicago, 879 F.2d 1402, 1418 (7th Cir. 1989).
Removal from a state court is complete, and the federal district court acquires exclusive
jurisdiction over the case, once “a removal petition is filed and proper notice is given to adverse
parties in state court.” § 1446(d); Schmude v. Sheahan, 312 F. Supp. 2d 1047, 1078 (N.D. Ill.
2004). Thereafter, the state court is divested of jurisdiction over the case and may not consider
motions or enter orders. Id.; § 1446(d) (“the State court shall proceed no further unless and until
the case is remanded.”). Once a case is removed to federal court, “[a] motion to remand the case
on the basis of any defect other than lack of subject matter jurisdiction must be made within 30
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days after the filing of the notice of removal under section 1446(a) . . . If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” § 1447(c).
SUMMARY OF THE COURT’S OPINION
The following analysis proceeds step by step as previously set forth in the background.
Part 1 of this Opinion concludes that Maiden’s November 30, 2015, motion in the Madison
County court to reconsider the October 28, 2015, transfer order did not stay the transfer of the
case to Peoria County and the transfer was effective immediately. Part 2 concludes that Liberty’s
November 25, 2015, notice of removal divested the Peoria County court of jurisdiction. Part 3
concludes that: (a) Liberty’s notice of removal was procedurally defective under the one-year
limitations period set forth in 28 U.S.C. § 1446(c), and (b) the case did not become “one which is
or has become removable” under § 1446(b)(3) by the involuntary dismissal of Jack Cooper. Part
4 concludes that: (a) Maiden’s motion to remand was timely under § 1447(c), and the motion
sufficiently raised the issue of procedural defects in the removal notice to justify remand. Part 5
denies Maiden’s motion for sanctions under § 1447(c) because Liberty had an objectively
reasonable basis for removal.
ANALYSIS
(1) The Madison County Court’s Order Transferring the Case to Peoria County was not
Stayed by Maiden’s Motion to Reconsider
The Madison County court’s October 28, 2015, order dismissed Jack Cooper as a
defendant to the action and transferred the case to Peoria County. Maiden’s motion to remand
argues that by filing a motion to reconsider in the Madison County court on November 30, 2015,
the enforcement of that court’s order was stayed and the case remained pending in Madison
County. “Because federal procedure does not apply until removal occurs,” the Court applies state
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rules to conduct before removal. Price v. Wyeth Holdings Corp., 505 F.3d 624 (7th Cir. 2007).
Illinois Supreme Court Rule 187(c)(1) states:
(c) Proceedings upon granting of motions.
(1) Intrastate transfer of action. The clerk of the court from which a transfer is
granted to another circuit court in this State on the ground of forum non
conveniens shall immediately certify and transmit to the clerk of the court to
which the transfer is ordered the originals of all documents filed in the case
together with copies of all orders entered therein. In the event of a severance,
certified copies of documents filed and orders entered shall be transmitted. The
clerk of the court to which the transfer is ordered shall file the documents and
transcript transmitted to him or her and docket the case, and the action shall
proceed and be determined as if it had originated in that court. The costs attending
a transfer shall be taxed by the clerk of the court from which the transfer is
granted, and, together with the filing fee in the transferee court, shall be paid by
the party or parties who applied for the transfer.
IL S CT Rule 187 (emphasis added).
Thus, it appears that Rule 187 supports Liberty Mutual’s position that an intrastate
transfer based on forum non conveniens operates to transfer jurisdiction to the transferee court
immediately by operation of law. That position finds support in Illinois case law as well. See
Ferracuti v. Ferracuti, 27 Ill. App. 3d 495, 498 (Ill. App. Ct. 1975) (“The order granting a
change of venue and specifying the court to which the case shall go even if it is erroneous invests
the receiving court with complete jurisdiction of the case.”); Pittsburgh, C., C. & St. L. Ry. Co. v.
City of Chicago, 144 Ill. App. 293, 297 (Ill. App. Ct. 1908), aff'd sub nom. Pittsburg, C., C. & St.
L. Ry. Co. v. City of Chicago, 242 Ill. 178 (1909) (“Where a change of venue is improperly
granted the proper practice for the party complaining seems to be to move to remand the cause to
the county from which it was sent, and if the motion is overruled to take an exception.”); Maton
Bros. v. Cent. Illinois Pub. Serv. Co., 356 Ill. 584, 591, 191 N.E. 321, 324 (1934) (“The change
of venue carries with it and confers upon the court to which the change is granted jurisdiction of
the parties as well as the subject-matter of the litigation.”). Therefore, Maiden’s motion to
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reconsider did not stay the transfer to Peoria County. Having concluded that the action was
pending in Peoria County, which is within the Central District of Illinois as required by §
1446(a), the Court turns to the effect of Liberty’s notice of removal.
(2) Liberty’s Notice of Removal Divested the Peoria County Court of Jurisdiction
Liberty Mutual’s November 25, 2015, removal stripped the Peoria County court of
jurisdiction to entertain motions or enter orders. “Once a removal petition is filed and proper
notice is given to adverse parties in state court, the federal district court has exclusive jurisdiction
over the case.” Schmude v. Sheahan, 312 F. Supp. 2d 1047, 1078 (N.D. Ill. 2004) (citing 28
U.S.C. § 1446(d); Georgia v. Rachel, 384 U.S. 780, 797 n. 27 (1966)). Thus, any motion filed in
the state court after the notice of removal is presented to the district court would “come too late,
since by then the state court had lost jurisdiction.” Fox Valley AMC/Jeer, Inc. v. AM Credit Corp.,
836 F.2d 366, 367 (7th Cir. 1988).
As discussed above, the Madison County court’s order transferred the case to Peoria
County, and that transfer was effective immediately. Liberty filed its notice of removal with this
Court on November 25, 2015, the Madison County court received notice of the removal on
December 7, 2015, and Peoria County received notice of the removal on either December 3,
2015, or January 4, 2016. See E.C.F. Doc. 7-1, at 5; Maiden v. Liberty Mutual et al., Case No.
15-L-00266 (Peo. Cnty. Ct. Dec. 3, 2015). When the Peoria County court received notice of the
removal, exclusive jurisdiction over the case rested with this Court. See Schmude, 312 F. Supp.
2d at 1078; 28 U.S.C. § 1446(d) (“the State court shall proceed no further unless and until the
case is remanded.”). Thus, having established that the action was (1) pending in Peoria County,
and (2) the notice of removal divested the state court of jurisdiction, the Court next analyzes
whether Liberty’s removal complied with the procedural requirements of the removal stautes.
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(3) Liberty’s Removal was Defective
(a) Liberty’s Removal was Untimely Under § 1446(c)’s One-Year Limitations Period
Section 1446(b)(3) provides that “if the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3). However, section 1446(c) limits removal of actions that were not
initially—but later became—removable by restricting the time to file the notice of removal to
one year after commencement of the action. § 1446(c); see also Caterpillar Inc. v. Lewis, 519
U.S. 61, 65 (1996) (“Grounding federal jurisdiction on diversity of citizenship . . . Caterpillar
satisfied with only a day to spare the statutory requirement that a diversity-based removal take
place within one year of a lawsuit's commencement.”).
Under Illinois law, an action is commenced by the filing of the complaint. 735 ILCS 5/2201(a); Stigleman v. Wal-Mart Stores, Inc., No. 16-1060, 2016 WL 1611577, at *3 (C.D. Ill.
Apr. 22, 2016). Here, Maiden commenced this action on November 3, 2014, by filing a
complaint in the Madison County state court. The notice of removal was filed on November 25,
2015, more than a year after the complaint was filed. Thus, Liberty’s removal was untimely, and
an untimely removal is a procedural defect that, upon a timely motion by Plaintiff, justifies
remand. See § 1447(c).
(b) The Case did not Become Removable by Jack Cooper’s Dismissal
In addition to Liberty’s removal being untimely under § 1446(c), Liberty’s removal was
defective under § 1446(b)(3). Removal of a civil action to federal court is proper so long as the
action is one “which the district courts of the United States have original jurisdiction.” 28 U.S.C.
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§ 1441(a). Thus, because district courts have original jurisdiction over actions meeting the
requirements for diversity of citizenship, removal may be based on diversity jurisdiction. See §§
1332, 1441; Tylka v. Gerber Products Co., 211 F.3d 445, 448 (7th Cir. 2000) (stating that
removal is proper for any action that could have been filed originally in federal court). Generally,
diversity must be present both at the time the complaint is filed and when it is removed. See
Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir. 1986).
Where an action is initially not removable because of the presence of a non-diverse
defendant, whether the diversity-destroying defendant’s dismissal makes the case removable
depends on whether the dismissal was voluntary. Poulos v. Naas Foods, Inc., 959 F.2d 69, 71
(7th Cir. 1992). The so-called “voluntary/involuntary rule” allows removal only when the
plaintiff voluntarily dismisses a non-diverse defendant. Id. at 72. The Seventh Circuit articulated
the dual purpose of the voluntary/involuntary rule in Poulos, stating:
The voluntary/involuntary rule serves two purposes. First, the rule contributes to
judicial economy. Removal following an involuntary dismissal may be only
temporary: the plaintiff may appeal the dismissal in state court, and success on
appeal would lead to the reinstatement of the non-diverse party, destroying federal
jurisdiction and compelling remand to the state court. Quinn v. Aetna Life &
Casualty Co., 616 F.2d 38, 40 n. 2 (2d Cir.1980). We are anxious to avoid this sort
of yo-yo effect. Second, some courts have invoked a general principle of
deference to the plaintiff's choice of forum. See, for example, Self, 588 F.2d at
659; Insinga v. La Bella, 845 F.2d 249, 253 (11th Cir.1988). Allowing removal
only when the plaintiff voluntarily dismisses a defendant ensures that the plaintiff
will not be forced out of state court without his consent.
Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir. 1992).
Here, the original parties to this case were Ethan Maiden, a citizen of Missouri, Jack
Cooper, a Delaware corporation with its principal place of business in Kansas City, Missouri, and
Liberty Mutual, a Massachusetts corporation with its principal place of business in Boston,
Massachusetts. The action was not initially removable because Maiden and Jack Cooper were
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both citizens of Missouri, so § 1446(b)(3)’s procedure for removal of actions not initially
removable applies. And the Madison County court’s October 28, 2015, order dismissing Jack
Cooper was not voluntary because Maiden did not “initiate[] the dismissal.” See Poulos, 959
F.2d at 72 n. 3; Knudson v. Sys. Painters, Inc., 634 F.3d 968, 976-77 (8th Cir. 2011). Therefore,
Liberty Mutual’s removal of this action was not only untimely under § 1446(c), but also
improperly removed under § 1446(b)(3) because Jack Cooper’s involuntary dismissal did not
operate to make the case removable. Having established that Liberty’s removal was procedurally
defective, the Court next addresses the effect of Maiden’s motion to remand.
(4) Maiden’s Motion to Remand was Timely and Sufficient to Justify Remanding the
Action to Peoria County
(a) Maiden’s Motion to Remand was Timely
Liberty Mutual argues that this Court should not consider Plaintiff’s motion to remand
because it was not timely filed. As previously stated, Liberty’s notice of removal was filed on
November 25, 2015, but because the notice failed to allege a sufficient basis for this Court’s
jurisdiction, Liberty filed an amended notice on December 9, 2015. Plaintiff’s motion to remand
was filed on January 5, 2016. The motion to remand alleged that this Court lacks jurisdiction to
hear the case, and requested that the matter be remanded to Madison County. Under 28 U.S.C. §
1447(c), “[a] motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of removal under
section 1446(a).” § 1447(c); Matter of Cont'l Cas. Co., 29 F.3d 292, 295 (7th Cir. 1994). A
defective notice of removal may be cured by post-removal amendment so long as jurisdiction in
fact existed at the time of removal. McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 654 (7th
Cir. 1998); N. Illinois Gas Co. v. Airco Indus. Gases, A Div. Of Airco, Inc., 676 F.2d 270, 273
(7th Cir. 1982) (“A removal petition may be amended freely within the thirty day period.”).
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When an original notice of removal is amended, the 30 day period for filing a motion to
remand is reset. See Williams v. Wal-Mart Stores, Inc., 534 F. Supp. 2d 1239, 1242 (M.D. Ala.
2008) (“[W]ith Wal-Mart's filing of its amended removal notice, Williams had another 30-day
time period to file a remand motion.”); Jones v. City of Buffalo, 867 F. Supp. 1155, 1167
(W.D.N.Y. 1994); see also § 3739 Remand, 14C FED. PRAC. & PROC. JURIS. § 3739 (4th ed.).
Thus, because Liberty Mutual’s initial notice of removal did not provide a sufficient basis for this
Court’s jurisdiction, Maiden’s January 5, 2016, motion to remand was timely filed within 30
days of Liberty’s December 9, 2015, amended notice of removal. Having determined that
Liberty’s removal was procedurally defective and Maiden’s motion to remand was timely, the
final step in the removal analysis is whether Maiden’s timely motion sufficiently alleged defects
in the removal so as to justify remand.
(b) Maiden’s Motion was Sufficient to Justify Remand
Maiden’s motion to remand asserted that removal was improper because the motion to
reconsider in Madison County operated to stay enforcement of the order dismissing Jack Cooper
and transferring the action to Peoria County. Thus, Maiden claims that this Court lacks
jurisdiction because (1) Jack Cooper remained a party to the case, so diversity jurisdiction was
lacking, and (2) the action was pending in Madison County, so the action should have been
removed to the Southern District of Illinois. Although Maiden frames the issue as one of subject
matter jurisdiction rather than a defect in the removal procedure, Maiden’s motion to remand
sufficiently raised the issue of procedural defects in Liberty’s removal so as to justify remand to
state court. See Rodas v. Seidlin, 656 F.3d 610, 623-24 (7th Cir. 2011) (explaining common but
incorrect practice of referring to removal defects as jurisdictional rather than procedural).
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Specifically, Liberty argued in response to Maiden’s motion that removal was proper
because Jack Cooper’s dismissal made the case removable under § 1446(b)(3). But the text of §
1446(b)(3) begins with the language, “Except as provided in subsection (c).” And § 1446(c)
expressly prohibits removal under subsection (b)(3) more than one year after the action was
commenced. Thus, “§ 1446(b) does not vindicate [Liberty’s] strategy.” See In re Mut. Fund Mkt.Timing Litig., 495 F.3d 366, 368-69 (7th Cir. 2007) (“Defendants invoked § 1446(b) in response
to plaintiffs' motion; the district court held that § 1446(b) does not vindicate defendants' strategy.
Such a holding does not invent an extra-statutory ground of remand; it just implements a
statutory ground.”).
Liberty bears the burden of demonstrating removal is proper, and the procedural
requirements for removal are mandatory and strictly applied. See Stigleman, 2016 WL 1611577
(C.D. Ill. April 22, 2016). Liberty did not meet that burden because their removal was defective
under § 1446(b)(3) and untimely under § 1446(c). Maiden properly preserved objections to the
removal procedure by filing a timely motion to remand, regardless of whether or not that motion
specifically raised § 1446(b)(3) as a basis for remand. See In re Mut. Fund Mkt.-Timing Litig.,
495 F.3d 366, 368-69 (7th Cir. 2007) (“Plaintiff’s motions to remand did not need to anticipate
and refute the defendants' potential response to the problems the motions identified.”); BEPCO,
L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 471 (5th Cir. 2012) (“[T]he district court acted
within its statutory authority because the remand motion was timely and the basis for remand
was a permissible Section 1447(c) ground.”). Having determined that Maiden’s motion to
remand complied with § 1447(c)’s procedural requirements, the Court remands this action to the
Peoria County court for further proceedings. Finally, the Court turns to Maiden’s motion for
sanctions.
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(5) Maiden’s Motion for Sanctions
Maiden’s supplemental motion included a request for sanctions, which the Court
construes as a request under § 1447(c) for costs and attorney’s fees incurred as a result of the
removal. “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only
where the removing party lacked an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 711, 163 L. Ed. 2d 547 (2005). Here,
Liberty Mutual had an objectively reasonable basis for removing the case to this federal court.
Jack Cooper, the diversity destroying party had been dismissed, and Liberty’s prior attempt at
removal resulted in an order from a district judge from the Southern District of Illinois that
stated:
Furthermore, it appears that the conduct at the root of this lawsuit arises
from legal representation provided in Peoria, Illinois, related to a traffic accident
that occurred in Peoria County, Illinois, within the Central District of Illinois.
There is no indication that this case has any connection to the Southern District of
Illinois other than the fact that the defendants may conduct business in this
district, and there is no indication that the plaintiff’s claim has anything to do with
the defendant’s business in the Southern District of Illinois. This leads the Court
to doubt whether this case belongs in the Southern District of Illinois. For this
reason, the Court ORDERS plaintiff Maiden to SHOW CAUSE on or before
January 9, 2015, why the Court should not transfer this case to the United States
District Court for the Central District of Illinois pursuant to 28 U.S.C. § 1404(a).
Maiden v. Liberty Mutual, Case No. 14-1388 (S.D. Ill. Dec. 22, 2014).
Thus, Liberty had an objectively reasonable basis for removal, and the Court exercises its
discretion not to award costs and fees in this case. Martin, 546 U.S. at 141.
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CONCLUSION
For the reasons stated above, Plaintiff’s Motion [6] to Remand is Granted in Part, and
Plaintiff’s [7] Motion for Sanctions is Denied. The Motion [6] being granted in part remands the
matter to the Circuit Court of Peoria County in Peoria, Illinois, and not to Madison County,
Illinois.
This matter is now terminated.
Signed on this 3rd day of June, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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