Benson v. LVNV Funding, LLC et al

Filing 32

ORDER denying 16 Motion to Remand to State Court. Signed by Judge G. Patrick Murphy on 3/1/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROGER BENSON
Plaintiff,
vs.
LVNV FUNDING, LLC,
RESURGENT CAPITAL SERVICES, LP,
CHASE BANK USA,
UNITED COLLECTION BUREAU, INC.,
FREDERICK J. HANNA & ASSOCIATES,
PC, and
WELTMAN, WEINBERG & REIS CO.,
LPA
Defendants.

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CIVIL NO. 11 - 1096-GPM-PMF

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter comes before the Court on Plaintff, Roger Benson’s motion to remand to state
court (Doc. 16). For the following reasons, Plaintiff’s motion is DENIED.
I. FACTS
Plaintiff initially filed this case in the Circuit Court for the Twentieth Judicial Circuit, St.
Clair County (Doc. 6, Ex. A). Between November 21, 2011, and November 28, 2011, Plaintiff
served the six named Defendants in this action with summons and the complaint (Doc. 16, Ex. A,
B, C, D, E, F). The last Defendant served with summons and the complaint was Resurgent Capital
Services, LP (Resurgent Capital), which occurred on November 28, 2011 (Id).
On December 16, 2011, Defendant Chase Bank USA (Chase) filed a notice of removal
pursuant to 28 U.S.C. §§ 1331, 1367, 1441, and 1446 (Doc. 6). Plaintiff’s complaint contains the
following allegations against all of the Defendants: violations of the Fair Debt Collection Practices
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Act (count one), violations of the Consumer Fraud and Deceptive Business Practices Act (count
two), and violations of Illinois Collection Agency Act, (count three) (Doc. 6, Ex. A). Chase claims
this case is properly removable because this Court has original jurisdiction over count one pursuant
to 28. U.S.C. § 1331, and supplemental jurisdiction over counts two and three (Doc. 6).
When Chase filed the notice of removal, it simply stated “[c]ounsel for all Defendants have
consented to this removal” (Doc. 6, ¶ 10). On January 4, 2012, Plaintiff filed a motion to remand
to state court (Doc. 16). Plaintiff argues that Chase’s statement claiming all Defendants “consented”
to the removal was insufficient to satisfy the rule of unanimity (See Doc. 16 - 17). Four days after
Plaintiff’s motion, the five non-removing Defendants filed a written consent to Chase’s removal
(Doc. 18).
II. ANALYSIS
The issue presented in this case is whether Chase’s statement in the notice of removal that
“[c]ounsel for all Defendants have consented to this removal” is sufficient to satisfy the rule of
unanimity. The rule of unanimity is a judicially created rule developed through the interpretation
of 28 U.S.C. § 1441 and its statutory predecessors, which requires all defendants to join a petition
for removal. See Hanrick v. Hanrick, 153 U.S. 192, 38 L. Ed. 685, 14 S. Ct. 835 (1894); Torrence
v. Shedd, 144 U.S. 527, 36 L. Ed. 528, 12 S. Ct. 726 (1892); Roe v. O’Donohue, 38 F.3d 298 (7th
Cir. 1994). In the Seventh Circuit, to “join” a motion is “to support it in writing[.]” Roe, 28 F.3d
at 301.1 Generally, all non-removing Defendants must “join” in the removal within thirty days after

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The Court is aware of the Federal Courts Jurisdiction and Venue Clarification Act, which was approved
December 7, 2011. However, that Act did not take effect until 30 days after December 7, 2011, and accordingly
only applied to “any action that is commenced in a United States district court on or after such effective date.” Since
this case was not removed to federal court until December 16, 2011, the Federal Courts Jurisdiction and Venue
Clarification Act did not apply to this case.

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being served with summons and the complaint. See Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 347-48, 143 L. Ed. 2d 448, 119 S. Ct. 1322 (1999). It is clear that Chase’s
statement in the notice of removal, standing alone, fails to satisfy the rule of unanimity. The
question then becomes whether Chase’s defective notice of removal warrants remand.
The general rule is “that any defect in the removal procedure requires remand.” DeLucca v.
Liggett Myers, No. 00-7781, 2001 U.S. Dist. LEXIS 6733, *3 (N.D. Ill. May 18, 2001). However,
with any rule comes exceptions. “[E]ven after the thirty days have elapsed, amendments to correct
‘defective allegations of jurisdiction’ are permitted.” Id. (citing Northern Illinois Gas Co. v. Airco
Industrial Gases, 676 F.2d 270, 273 (7th Cir. 1982)). In “cases where the notice of removal contains
procedural defects, the issue for the court is whether the notice was so defective as to be incurable.”
Int’l Gateway Commc’ns. v. Commc’ns Telesystems Int’l, Inc., 922 F. Supp. 122, 124 (N.D. Ill.
1996).
In this case, the defect in Chase’s notice of removal was clearly a procedural defect. The
notice of removal contained sufficient statements to establish this Court’s subject matter jurisdiction
pursuant to 28. U.S.C. § 1331 and 28 U.S.C. § 1367. Chase made a representation to the Court the
non-removing Defendants consented to the removal. However, this statement alone fails to comply
with the Seventh Circuit’s interpretation of the removal statutes.
The next step of the analysis then is to determine whether Chase’s notice of removal was so
defective as to be incurable. The defect in the notice of removal was not so defective as to be
incurable because four days after Plaintiff’s motion for remand, the five non-removing Defendants
filed a written consent to Chase’s removal (Doc. 18). Certainly, it is true that the written consent
was filed more than thirty days after Resurgent Capital was served with summons and the complaint.

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However the emphasis must be on whether the defect in Chase’s notice of removal was so defective
as to be incurable. That is clearly not the case here, as the procedural defect in Chase’s notice of
removal has been cured. Accordingly, Plaintiff’s motion for remand to state court (Doc. 16) is
DENIED.
IT IS SO ORDERED.
DATED: March 1, 2012
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G. PATRICK MURPHY
United States District Judge

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