Simko et al v. Natale et al

Filing 9

OPINION AND ORDER granting 6 Motion to Remand: this case is hereby REMANDED to the Porter County Superior Court for redocketing under Indiana state court case number 64D05-1407-CT-6607. The Clerk of this Court shall treat this civil action as TERMINATED. All further settings in this action are hereby VACATED. Signed by Chief Judge Philip P Simon on 10/15/14. cc: Porter County Superior Court Clerk (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DANIEL J. SIMKO and NANCY
SIMKO,
Plaintiffs,
v.
LOAD ONE, LLC, ERIC NATALE and
WILLIAM J. HOFFMAN,
Defendants.

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2:14-cv-00365-PPS-APR

OPINION AND ORDER
Plaintiffs Daniel Simko and Nancy Simko originally filed this case in Indiana
State court alleging claims related to a motor accident in Indiana. (Docket Entry 5.)
Defendant Eric Natale removed the case to federal court on October 7, 2014 based on
diversity jurisdiction, claiming that the plaintiffs are citizens of Indiana and the
defendants are all citizens of Michigan. (DE 1.) Counsel for plaintiffs and defendants
conferred during the evening of October 7, and counsel for defendants stated that he
would move to have the case remanded the next day. (DE 7 Ex. 2.) On October 8, before
defense counsel could act, the plaintiffs moved to remand the case because all of the
parties in the case are citizens of Michigan, precluding diversity jurisdiction in federal
court. (DE 6.) The defendants consent to remand, but object to an order for an award of
the fees and costs of removal because the removal was done pursuant to a good-faith, if
mistaken, belief that the plaintiffs are currently residents of Indiana. (DE 8.)
The Court may award costs and expenses incurred due to removal. 28 U.S.C. §

1447(c). This is not a situation in which such an award is appropriate. The removal
appears to have been done in good faith, albeit erroneously. The complaint didn’t
identify the citizenship of the plaintiffs. The crash report did indicate the plaintiffs were
citizens of Michigan at the time of the crash in February 2013, but there was no
indication of their citizenship 17 months later when the case was filed. Counsel for
defendants acknowledged the error when plaintiffs’ counsel pointed it out, and stated
that he would rectify it the next day. Rather than waiting a day, however, plaintiffs’
counsel turned around and moved to remand – the costs incurred were therefore of his
own making, not defense counsel’s, and the defendants should not be held financially
responsible for plaintiffs’ counsel’s impatience.
Therefore, pursuant to 28 U.S.C. § 1447(c), Daniel Simko’s and Nancy Simko’s
motion for remand (DE 6) is GRANTED and this case is hereby REMANDED to the
Porter County Superior Court for redocketing under Indiana state court case number
64D05-1407-CT-6607. The Clerk of this Court shall treat this civil action as
TERMINATED. All further settings in this action are hereby VACATED.
SO ORDERED.
ENTERED: October 15, 2014
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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