Hankinson, D.C. v. Northwestern Mutual Life Insurance Company et al
Filing
6
OPINION: Plaintiff's Objection (d/e 5) is DENIED. This matter will proceed in this Court. See written Opinion. Entered by Judge Sue E. Myerscough on 8/1/2011. (MJ, ilcd)
E-FILED
Monday, 01 August, 2011 02:30:32 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
WILLIAM E. HANKINSON, D.C.,
)
)
Plaintiff,
)
)
v.
)
)
NORTHWESTERN MUTUAL LIFE )
INSURANCE COMPANY, R. ADAM )
SPRINGER, and JAMES SMITH,
)
)
Defendants.
)
No. 11-3205
OPINION
This cause is before the Court on Plaintiff William E. Hankinson’s
Objection to Notice of Removal (Objection) (d/e 5). For the reasons
stated below, the Objection is DENIED.
FACTS
On June 9, 2011, Plaintiff filed a Complaint against Defendants
Northwestern Mutual Life Insurance Company (Northwestern Mutual),
R. Adam Springer, and James Smith in the Circuit Court of the Seventh
Judicial Circuit, Sangamon County, Illinois. The action includes claims
Page 1 of 5
asserted under 29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (ERISA) for payment of disability
insurance benefits and several state law claims.
On July 11, 2011, Northwestern Mutual filed a Notice of Removal
in this Court. Plaintiff attached the Notice of Filing that he filed in the
Circuit Court of Sangamon County informing that court of the removal.
Also attached to Northwestern Mutual’s Notice of Removal was
Springer’s Consent to Notice of Removal. Smith filed his Consent to
Removal on July 12, 2011.
On July 12, 2011, Magistrate Judge Charles Evans entered a text
order that stated the Notice of Removal “appears to be in compliance
with removal requirements and procedures.” Judge Evans gave Plaintiff
until July 26, 2011, to file objections. On July 25, 2011, Plaintiff filed
his Objection. Plaintiff’s objection asserts that Defendant Springer’s
counsel has provided Plaintiff’s counsel with an affidavit indicating
Springer wants to retract his consent to remove the case to federal
Page 2 of 5
court.1
ANALYSIS
Removal is generally valid only if all defendants give unanimous
consent to removal. Pettitt v. Boeing Co., 606 F.3d 340, 343 (7th Cir.
2010). Parties may seek remand of a case for any reason other than lack
of subject matter jurisdiction within 30 days of the filing of a notice of
removal. 28 U.S.C. §1447(c).
Plaintiff’s Objection argues that in the absence of Springer’s
consent to removal, Northwestern cannot meet the “rule of unanimity”
whereby all defendants must join in a removal petition to effect
removal.2 Moreover, removal to this Court became effective once
Northwestern Mutual filed a notice of removal with this Court and
notified the Sangamon County Circuit Court through its Notice of
Filing. See 28 U.S.C. §1446(d); see also Jeffrey v. Cross Country Bank,
131 F. Supp. 2d. 1067, 1069 (E.D. Wis. 2001).
1
A copy of Springer’s affidavit is attached to the Objection.
2
The Objection cites Northern Illinois Gas Company v. Airco Industrial Gases,
a Division of Airco, Inc., 676 F.2d 270 (7th Cir. 1982), for this proposition.
Page 3 of 5
However, Plaintiff provides no authority that states that after all
defendants have consented to removal of a case, and after removal is
effectuated, one of those defendants may subsequently withdraw that
consent, making the removal ineffective.
While statutory provisions exist that allow parties served after
removal to move a court to remand (28 U.S.C. §1448), neither of those
provisions nor any evident case law contemplates the ability of a onceconsenting party to withdraw that consent. Cartee v. Precise Cable
Const., Inc., No. 05-0515C, 2005 WL 2893951, at *1 n. 4 (S.D. Ala.
2005). Indeed, the general rule is that the propriety of removal is
determined at the time the notice of removal is filed. Jeffrey, 131 F.
Supp. 2d. at 1069 (citing Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th
Cir. 1993)). District Courts in other Circuits have found it improper to
allow remand due to a party’s expressed desire to withdraw consent to
removal. See McMahan Jets, LLC v. X-Air Flight Support, LLC, No.
2:10CV175, 2011 WL 39810, at *5 (S.D. Miss. 2011). Allowing such
withdrawals of consent to removal would run counter to federal courts’
Page 4 of 5
general policy discouraging forum and judge shopping. Id. (citing New
England Wood Pellet, LLC v. New England Pellet, LLC, 419 B.R. 133,
142 (D.N.H. 2009)).
CONCLUSION
For the reasons stated, Plaintiff’s Objection (d/e 5) is DENIED.
This matter will proceed in this Court.
IT IS SO ORDERED.
ENTERED: July 29, 2011.
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE
Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?