Komacko v. American Erectors Inc

Filing 23

OPINION AND ORDER denying 20 Motion to Reconsider Courts Order of June 25, 2013 for lack of jurisdiction. Signed by Judge Rudy Lozano on 7/10/13. (mc)

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 Admiral Insurance Company’s
Motion to Reconsider Court’s Order of June 25, 2013, filed by
Garnishee-Defendant, Admiral Insurance Company (“Admiral”), on July
2, 2013 (DE #20).

For the reasons set forth below, the Motion to

Reconsider is DENIED for lack of jurisdiction.

BACKGROUND
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).
Komacko served Admiral Insurance Company (“Admiral”) and Secura,

American Erectors’ putative insurers, as garnishee defendants.
On

November

supplemental
jurisdiction.

to

28,

2012,

federal

Secura

district

removed

court

the

based

proceedings

upon

diversity

The notice of removal failed to specify whether all

other defendants consented to removal and it was not signed by any
other defendant.

Komacko opposed the removal, and filed a Motion

to Remand on December 14, 2012 (DE #4), arguing removal was
procedurally and substantively improper.

American Erectors filed

a notice of joinder in the motion to remand.

(DE #16.)

Admiral

filed a response to Komacko’s motion to remand, simply stating
Admiral “joins in the Response of Secura Insurance Company to
Komacko’s Motion to Remand.”

(DE #13.)

On June 25, 2013, this

Court granted the motion to remand and remanded the case back to
the

Lake

Circuit

Court

in

Crown

Point,

Indiana.

(DE

#19.)

Specifically, the Court found there was a procedural defect in the
removal procedure because Admiral never timely filed its consent to
the removal.

Id.

DISCUSSION
This district court lacks jurisdiction to reconsider its
earlier order remanding the case back to state Court.

The removal

statute provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise” except for certain inapplicable exceptions.

2

28 U.S.C.

§ 1447(d) (emphasis added).

A district court ordinarily may not

reconsider an order remanding an action, 28 U.S.C. § 1447(d), and
that prohibition “applies only to cases remanded, pursuant to 28
U.S.C. § 1447(c), for lack of subject matter jurisdiction or
defects in the removal procedure.”

First Union Nat’l Bank of

Florida v. Hall, 123 F.3d 1374, 1377 (11th Cir. 1997).

“This

nonreviewability extends to the power of a district court to
reconsider its own remand order.”

Id. (quotation omitted).

In this case, the Court clearly remanded the case based upon
a defect in the removal procedure.

Albeit in a slightly different

context, the Seventh Circuit has recognized that cases “hold []
that section 1447(d) strips the district court of jurisdiction to
reconsider an order of remand issued by it.”

Midlock v. Apple

Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005).
This Court concurs with the analysis in Pennier v. Morton
Int’l Inc., reasoning:
[A]s 1447(d) expressly states a remand order is not
reviewable on appeal or otherwise, this Court
believes the same analysis employed by the
appellate courts should be employed by the district
court when asked to review a remand order. . . this
Court believes it does not have jurisdiction to
entertain the motion for reconsideration, [and]
this Court believes it does not have jurisdiction
to consider the merits of the motion for
reconsideration.
Pennier v. Morton Int’l Inc., No. 1-1111, 2011 WL 3240476, at *1
(W.D. La. July 28, 2011) (emphasis in original).
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Similarly, the

Court in Faulk v. Swan found that it lacked jurisdiction to grant
defendants’ motion to reconsider a grant of remand

- the language

under 28 U.S.C. § 1447(d) stating remand is unreviewable on appeal
“or

otherwise”

precluded

further

review

by

a

district

court

following a determination that the case be remanded to state court.
Faulk v. Swan, No. 4:10-cv 0397, 2010 WL 2609551, at *1 (E.D. Ark.
June 28, 2010).

Because this Court lacks jurisdiction, it must

deny Admiral’s motion for reconsideration.

CONCLUSION
For the reasons set forth above, Admiral Insurance Company’s
Motion to Reconsider Court’s Order of June 25, 2013, filed by
Garnishee-Defendant, Admiral Insurance Company (“Admiral”), on July
2, 2013 (DE #20), is DENIED for lack of jurisdiction.

DATED: July 10, 2013

/s/ RUDY LOZANO, Judge
United States District Court

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