Komacko v. American Erectors Inc
Filing
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OPINION AND ORDER: Court GRANTS 4 Motion to Remand. This case is REMANDED back to the Lake Circuit Court in Crown Point, Indiana. Signed by Judge Rudy Lozano on 6/25/2013. cc: cert copy and cert docket sent to Lake Circuit Court (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JANET KOMACKO,
Plaintiff,
vs.
AMERICAN ERECTORS, INC.,
et al.,
Defendants.
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CAUSE NO. 2:12-CV-495
OPINION AND ORDER
This matter is before the Court on Plaintiff Janet Komacko’s
Motion to Remand, filed by Plaintiff, Janet Komacko, on December
14, 2012 (DE #4).
For the reasons set forth below, the Motion to
Remand is GRANTED and this case is REMANDED back to the Lake
Circuit Court in Crown Point, Indiana.
BACKGROUND
This case has an unusual procedural history. Following a jury
trial in the Circuit Court of Lake County, Indiana, on June 29,
2012, Janet Komacko obtained a judgment against Defendant American
Erectors, Inc., for the wrongful death of her husband, in the
amount of $4.93 million.
On October 16, 2012, Komacko filed a
Verified Motion to Enforce Judgment by Proceedings Supplemental to
Execution under Ind. Trial R. 69(E).
Insurance
Company
(“Admiral”)
and
Komacko served Admiral
Secura,
American
Erectors’
putative insurers, as garnishee defendants.
On November 20, 2012, Admiral appeared by counsel in the
proceedings supplemental and demanded a jury.
That same day,
Secura appeared by counsel in those proceedings.
Komacko served interrogatories on Admiral and Secura. Admiral
answered Komacko’s interrogatories, stating that coverage was
excluded under the terms of its policy with America Erectors.
Admiral also provided Komacko with a copy of the policy to which it
referred in denying coverage.
Secura did not answer Komacko’s
interrogatories as Admiral did.
Instead, Secura filed a complaint
in this Court and commenced an action for declaratory judgment.
(Case no. 2:12-cv-481.)
On
November
supplemental
to
28,
2012,
federal
Secura
district
removed
court
the
based
proceedings
upon
diversity
jurisdiction, and this proceeding was pending before Judge Theresa
L. Springmann.
Komacko opposed this, and filed the current Motion
to Remand on December 14, 2012 (DE #4).
American Erectors filed a
notice of joinder in the motion to remand.
(DE #16.)
In the
meantime, Komacko filed a motion to dismiss the petition for
declaratory judgment in case number 2:12-cv-481 on November 30,
2012.
On June 17, 2013, Judge Springmann transferred case number
2:12-cv-495 to this Court because the two cases were related under
N.D. L.R. 43(e).
(DE #18.)
Thus, pending before this Court now is
the fully ripe Motion to Remand.
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DISCUSSION
The party seeking the federal forum has the burden of showing
that this case was removable.
Wellness Cmty.-Nat’l v. Wellness
House, 70 F.3d 46, 49 (7th Cir. 1995); Fate v. Buckeye State Mut.
Ins. Co., 174 F.Supp.2d 876, 878 (N.D. Ind. 2001); Roberson v.
Orkin Exterminating Co., Inc., 770 F. Supp. 1324, 1328 (N.D. Ind.
1991).
A remand based upon 28 U.S.C. § 1447(c) may be either for
a procedural defect in removal, or for lack of subject-matter
jurisdiction.
Powerex Corp. v. Reliant Energy Servs. Inc., 551
U.S. 224, 229-30 (2009). Komacko’s motion to remand raises both of
these alleged defects.
However, the procedural defect alone bars
removal of this case.
On October 29, 2012, Komacko began proceedings supplemental to
execution under Indiana Trial Rule 69(E), against America Erectors
and its insurers, Secura and Admiral.
According to Secura, “[t]he
purpose of the proceedings supplemental is to determine whether
Secura and Admiral have assets belonging to, or obligations owing
to, American Erectors that might be used to satisfy any part of the
judgment returned against American Erectors.”
pp. 2-3.)
(Notice of Removal,
Komacko identified Admiral and Secura as garnishee
defendants in the underlying proceedings supplemental.
Admiral
was served with the Motion for Proceedings Supplemental on November
12, 2012, and thus had 30 days after that to file a motion for
removal.
28 U.S.C. § 1446(b)(1).
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Admiral never filed a motion to
remove.
Secura
was
served
with
the
Motion
for
Proceedings
Supplemental one day later, on November 13, 2012. Thus, Secura had
until December 13, 2012 to file removal documents. Secura did file
its notice of removal on November 28, 2012.
However,
removal.
Admiral
never
timely
filed
its
consent
to
the
28 U.S.C. section 2446(b)(2)(C) provides that “[i]f
defendants are served at different times, and a later-served
defendant files a notice of removal, any earlier-served defendant
may
consent
to
the
removal
even
though
that
earlier-served
defendant did not previously initiate or consent to removal.”
Thus, the later-served defendant, Secura, had until December 13,
2012, to properly file all the necessary removal documents.
includes the written consent of all defendants:
This
when a civil
action is removed solely under section 1441(a), such as this
action, “all defendants who have been properly joined and served
must join in or consent to the removal of the action.”
§ 1446(b)(2)(A).
28 U.S.C.
Here, Admiral did not consent to or join in the
notice of removal within the 30-day time frame.1
Secura now attaches an email and a letter between counsel
1
American Erectors never filed any sort of consent to the
removal of this matter. Secura argues American Erectors is only
a nominal party to the proceedings supplemental, thus it need not
join in removal. Regardless of whether American Erectors should
have also joined in the removal, Admiral was specifically named a
garnishee defendant in the proceedings supplemental, Admiral had
already been served at the time the removal petition was filed,
and Admiral is an indispensable party which needed to consent to
secure a proper removal.
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asserting Admiral consented to removal (see email and letter dated
November 30, 2012, DE #10, Ex. A, between counsel), and Admiral did
file a purported consent to removal with the Court on December 17,
2012 (DE #9), but this was several days past the 30-day window
within which the consent was required. The Seventh Circuit applies
the requirement of timely written consent strictly.
Shaw v. Dow
Brands, Inc., 994 F.2d 364, 368 (7th Cir. 1993) (overruled on other
grounds)(citing Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178
U.S. 245, 248 (1900)); Eltman v. Pioneer Commc’ns of Am., Inc., 151
F.R.D. 311, 314 (N.D. Ill. 1993).
As the Seventh Circuit has
stated, “[a] petition for removal fails unless all defendants join
it.
To ‘join’ a motion is to support it in writing.”
Roe v.
O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994) (abrogated on other
grounds).
In Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir.
1997), the Seventh Circuit applied this requirement to find a
removal
petition
defective
because
even
though
the
removing
defendant “noted that all properly served defendants agreed to the
removal, . . . not all of these defendants joined in the petition
because not all of them signed it.”
Here, Admiral’s e-mail and
letter consenting to removal is insufficient to meet the Seventh
Circuit’s strict requirement of express, written consent, and the
later filed notice of consent was untimely.
Generally, “[t]he
removal statute should be construed narrowly and any doubts about
the propriety of removing a particular action should be resolved
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against allowing removal.”
Wirtz Corp. v. United Distillers &
Vintners N. Am., Inc., 224 F.3d 708, 715 (7th Cir. 2000).
Because
Defendant
Secura
failed
to
meet
the
consent
requirements of 28 U.S.C. § 1446, the Motion to Remand is granted
on this basis.
CONCLUSION
For the reasons set forth above, the Motion to Remand (DE #4)
is GRANTED and this case is REMANDED back to the Lake Circuit Court
in Crown Point, Indiana.
DATED: June 25, 2013
/s/ RUDY LOZANO, Judge
United States District Court
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