Brown et al v. Cerro Flow Products, Inc. et al

Filing 18

ORDER STRIKING 17 Supplement to Notice of Removal filed by Defendants Pharmacia Corporation, Solutia, Inc., Monsanto AG Products, LLC, and Pfizer, Inc. Signed by Judge G. Patrick Murphy on 9/8/2009. (jhs)

I N THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF ILLINOIS L E N O R A VANESSA BROWN, et al., all of ) wh o m are Individuals residing in Illinois, ) ) Plaintiffs, ) ) v s. ) ) C E R R O FLOW PRODUCTS, INC., a ) D e lawar e corporation with its principal place ) o f business located in Illinois, et al., ) ) D e f e n d an t s . )

C I V I L NO. 09-582-GPM

MEMORANDUM AND ORDER
M U R P H Y , District Judge: T his case, which was filed originally in the Circuit Court of the Twentieth Judicial Circuit, St. C la ir County, Illinois, and removed to this Court by Defendants Pharmacia Corporation, Solutia, Inc., M o n s a nto AG Products, LLC, and Pfizer, Inc., on the basis of 28 U.S.C. § 1442, so-called "federal officer" removal jurisdiction, is before the Court on the "Supplement to Notice of Removal" filed by the removing Defendants (Doc. 17). In their "Supplement" the removing Defendants purport to amend their notice of removal in this matter to assert an entirely new basis for federal subject matter ju risdiction, specifically, diversity of citizenship pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). It is too late, of course, for the removing Defendants to amend their notice of removal to assert a new basis for federal subject matter jurisdiction. "A notice of removal may be amended more tha n thirty days after the time to remove [set out in 28 U.S.C. § 1446(b)] has expired `only to set out m ore specifically the grounds for removal that already have been stated, albeit imperfectly, in the origina l notice . . . . Completely new grounds for removal jurisdiction may not be added and missing Page 1 of 2

a llega tions may not be furnished, however." Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 844 n.2 ( S .D . Ill. 2006) (quoting 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & J oa n E. Steinman, Federal Practice & Procedure § 3733 (3d ed. 1998 & Supp. 2005)) (collectin g cases). See also Brown v. Alter Barge Line, Inc., 461 F. Supp. 2d 781, 785

(S .D . Ill. 2006); Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 937 (S.D. Ill. 2006).1 Accordingly, the removing Defendants' "Supplement" to their notice of removal is STRICKEN from the record of this case. The Court notes that a motion for remand of this case to state court for lack of federal subject m a tter jurisdiction is on file (Doc. 16), and the Court expects the removing Defendants to file a timely respo nse to the motion in accordance with the Court's local rules. See SDIL-LR 7.1(c). Failure to file a timely response to the motion will be construed by the Court as assent to the motion to remand. S e e id. See also Davis v. Olin Corp., No. 05-CV-4001-JPG, 2005 WL 3455120, at *8 (S.D. Ill. D ec. 16, 2005). I T IS SO ORDERED. D A T E D : September 8, 2009 /s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge

1. As an additional matter, the Court notes that the removing Defendants' theory of CAFA ju risdiction is completely ridiculous. In order for this case to qualify as a "mass action" under the s t a t u te, there must be at least one hundred Plaintiffs. See 28 U.S.C. § 1332(d)(11)(B)(i). H ere there are only thirty Plaintiffs. In addition to Lenora Vanessa Brown, Plaintiffs are: E la ine Fall-Shy Crumble; Shirley Mae Anderson; Betty Jean Perry; Dorothy L. White; B essie Earl Nicholson; Katie Joe Sims; Katie Ruth Bell; Vanessa Carol Cannon; Queen Ella Ellis; W ilm a Joe Gaston; Etta Lorraine Spencer; Felicia Dorothea Farmer; Jurline Foggy; June Ethel Plair; G encie Mae Perkins; Hattie B. Green; Bertha Lee Hudson; Virginia Kay Falls; Melba Louise Johnson; D eloris Blaylock; Margeri Walker; Alberta Boose; Kim Vanderlis Golden; Mashonda Sharmel Young; Ka thleen Ross; Lori Lee Goudey; Erica Latrice Bell; Millie Christine Peoples; and E liza beth Beatrice Jackson. P a ge 2 of 2