PNC Bank, National Association v. Seliga et al

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 9/24/2013.(ym, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff,
v.
KAREN SELIGA and ROBERT
MATOS,
Defendants.

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Case No. 12-cv-9205
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Defendants Karen Seliga and Robert Matos removed this mortgage foreclosure
proceeding from the Circuit Court of Will County, Illinois, on November 16, 2012. Plaintiff,
PNC Bank, National Association (“PNC”), moves to remand this case to the Circuit Court of
Will County on the basis that the action was improperly removed. For the reasons provided
below, the Motion is granted.
BACKGROUND
On October 21, 2011, PNC filed suit against Seliga and Matos, as well as United
Guaranty Residential Insurance Company of North Carolina, Ogden Pointe at the Wheatlands
Condominium Association, the Wheatlands Homeowners Association, Atlantic Credit &
Finance, Inc., and unknown owners and non-record claimants in the Circuit Court of Will
County, Illinois. (Notice of Removal ¶ 1.) On May 2, 2012, Defendants filed responsive
pleadings to PNC’s Complaint and asserted affirmative defenses and counterclaims. (Remand
Mot. Ex. 1.) PNC filed a second amended complaint in that court on July 3, 2012, which
Defendants moved to dismiss on August 28, 2012. (Remand Mot. Ex. 2, 4.) On August 2, 2012,

PNC moved to dismiss Defendants’ affirmative defenses and counterclaims, which the Circuit
Court of Will County granted on December 13, 2012. (Remand Mot. Ex. 3, 7.) Defendants filed
amended counterclaims against PNC. (Remand Mot. Ex. 5.) The Circuit Court of Will County
also denied Defendants’ motion to dismiss PNC’s Second Amended Complaint in the Order
issued on December 13, 2012, and further ruled Defendants’ notice of removal to District Court
was improper under 28 U.S.C. § 1446. (Remand Mot. Ex. 7.)
Despite this ruling from the Will County Circuit Court, Defendants persisted in their
removal to this Court, filing their notice of removal here on November 16, 2012. (Dkt. No. 1.)
PNC filed a motion to remand the action to Will County on May 15, 2013.
LEGAL STANDARD
A civil action brought in a state court may be removed by the defendant to the
appropriate United States District Court on the basis of the diversity of the parties. 28 U.S.C. §§
1332(b), 1441.
Generally, for a case to be removed from state court to federal court, notice of removal
must be filed by the defendant within thirty days: (1) after the defendant receives a copy of the
initial pleading or (2) after the service of summons on the defendant, if the initial pleading has
then been filed in court and is not required to be served on the defendant, whichever period is
shorter. 28 U.S.C. § 1446(b). Additionally, if the case is not removable at the initial pleading
stage, notice of removal may be filed thirty days after a defendant receives notice that the case is
one which may be removed. 28 U.S.C. § 1446(b)(3). A case may not be removed on the basis
of diversity jurisdiction more than 1 year after commencement of the action. 28 U.S.C. §
1446(c).

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“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). If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
ANALYSIS
PNC moves to remand this action to state court on the basis that Defendants’ removal
was untimely under 28 U.S.C. § 1446. However, Defendants counter that PNC’s motion should
be denied as PNC failed to file its remand motion within 30 days of the removal, as required by
28 U.S.C. § 1447(c).
It is apparent that by waiting over a year after the action commenced in state court,
Defendants’ notice of removal on the basis of diversity was untimely under 28 U.S.C. § 1446(c).
At issue is whether PNC’s motion to remand was untimely such to waive its right to seek a
remand.
Section 1447(c) requires that a motion for remand be filed within 30 days after the filing
of a notice of removal, unless the basis of the defect raised in the remand motion is the district
court’s lack of subject-matter jurisdiction. Defendants argue that the defect raised in PNC’s
motion to remand (namely, the untimely removal) is a procedural, rather than a jurisdictional,
basis. (Resp. at 3.) PNC contends that Defendants’ failure to remove within one year as
required by 28 U.S.C. § 1446 results in a jurisdictional bar, which can be raised in a remand
motion at any time prior to final judgment, pursuant to 28 U.S.C. § 1447(c).
Defendants present legal authority from courts in other circuits, which have held that the
one-year limitation on the removal of diversity cases is a procedural requirement. (Resp. at 3.)
Courts in this District have also differed in the treatment of removal on the basis of diversity
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after more than one year as a procedural or jurisdictional defect. For example, in Foiles v.
Merrell National Lab., 730 F.Supp. 108 (N.D. Ill. 1989), Judge Nordberg remanded a case to
state court on the basis that “the Court does believe the one-year limit is jurisdictional.” Foiles,
730 F.Supp. at 110. Judge Shadur declined to remand a case sua sponte under Section 1447(c)
“[b]ecause tardiness in removal is not a subject matter jurisdictional issue.” Arnieri v. Cornhoff,
807 F. Supp. 2d 739, 741 (N.D. Ill. 2011).
However, the reasoning of Judge Nordberg’s opinion is particularly compelling. Judge
Nordberg examined the legislative history relating to amendments to Section 1446, which
provided the one-year limit on removal on the basis of diversity was established “as a means of
reducing the opportunity for removal after substantial progress has been made in state court. The
result is a modest curtailment in access to diversity jurisdiction.” Foiles, 730 F. Supp. at 110
(quoting 1988 Cong. & Admin. News, at 6032-33) (emphasis added). In imposing this one year
limitation for cases removed on the basis of diversity jurisdiction, Congress was expressly acting
to reduce the case load of federal courts. Foiles, 730 F. Supp. at 110 (citing 1988 Cong. &
Admin. News at 6005-06).
If these rules were to be read as Defendants suggest, it would essentially render the oneyear limitation for diversity removal meaningless, as a defendant in a state-court proceeding
could attempt to remove the case to federal court on the basis of diversity at any time and cross
its fingers that the opposition fails to move for remand within 30 days.
Defendants failed to file their removal in a timely fashion, as required by 28 U.S.C. §
1446(c). Failure to follow this requirement results in a jurisdictional bar, particularly
considering that the purpose of the legislature to curtail the removal of additional diversity
actions into federal courts is achieved by this requirement.
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CONCLUSION
For the reasons set forth above, PNC’s Motion to Remand is granted, and this action is
remanded to the Circuit Court of Will County, Illinois. Civil case terminated.

Date: September 24, 2013

______________________________
JOHN W. DARRAH
United States District Court Judge

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