Stranten et al v. Struble et al

Filing 7

OPINION AND ORDER - The amended Notice of Removal must be filed no later than 1/24/2013 or the Court may sua sponte issue a remand to the Porter Superior Court for lack of subject matter jurisdiction. Signed by Judge Rudy Lozano on 1/17/2013. (kds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

CATHERINE V. STRANEN
and MERCANTILE NATIONAL BANK
OF INDIANA, as Trustee
Under Trust No. 6720-LT,
Plaintiffs,
vs.
RONALD STRUBLE and
JOSHUA GODDARD d/b/a
COWBOYS EXCAVATING,
Defendants.

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NO. 3:13-CV-005

OPINION AND ORDER
This matter is before the Court sua sponte on the Notice of
Removal,

filed

by

defendant

Excavating, on January 3, 2013.

Joshua

Goddard,

(DE #2.)

d/b/a

Cowboys

For the reasons set

forth below, this Court ORDERS defendant Joshua Goddard, d/b/a
Cowboys Excavating, to submit an amended Notice of Removal, along
with a brief and/or any documents necessary, stating with precision
the basis for the assertion of diversity jurisdiction. The amended
Notice of Removal must be filed no later than January 24, 2013, or
the Court may sua sponte issue a remand to the Porter Superior
Court for lack of subject matter jurisdiction.

BACKGROUND
On

November

13,

2013,

Catherine

V.

Stranen

(“Plaintiff

Stranen”) and Mercantile National Bank of Indiana, as Trustee Under
Trust No. 6720-LT (“Mercantile National Bank”) (collectively,
“Plaintiffs”), filed a Complaint in the Porter County Superior
Court (64D02-1211-CT-11500).
defendant

Ronald

Struble

(DE #1.)

(“Defendant

The Complaint alleges that
Struble”)

owns

property

adjacent to Plaintiffs’ real estate and that, in September of 2011,
defendant Joshua Goddard, d/b/a Cowboys Excavating (“Defendant
Goddard”), “trespassed upon Plaintiffs’ Real Estate, destroyed,
removed, and/or converted numerous trees and lumber” while “working
as an agent for and/or with the consent and authority” of Defendant
Struble. (Id. at 2.) The Complaint further alleges that Plaintiff
Stranen is a “resident” of Chicago, Illinois and that Plaintiffs
own real estate in Starke County, Indiana.

(Id. at 1.)

The

Complaint lists Defendant Struble as a “resident” of Hebron,
Indiana and Defendant Goddard as a “resident” of Rensselaer,
Indiana.

(Id.)

On January 3, 2013, a Notice of Removal was filed by Defendant
Goddard via his counsel.

(DE #2.)

In that Notice, Defendant

Goddard states that he was served with Summons on or about November

2

13, 2013.1

(Id. at 2.)

He further declares that “Plaintiff is a

resident of Chicago, Illinois,” that “Defendant Struble is an
Indiana resident,” and that “Defendant Goddard is an Indiana
resident of Rensselaer, Indiana.” (Id.) He does not reference the
citizenship of the additional named plaintiff Mercantile National
Bank.

However, Plaintiff Goddard does state that the amount in

controversy is in excess of $75,000.
that

Defendant

Goddard

states

(Id.)

that

the

It is on these bases
Court

has

diversity

jurisdiction pursuant to 28 U.S.C. § 1332.

DISCUSSION
A case may be removed from state court to federal court if it
is based on statutorily permissible grounds and if it is timely.
Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).
See 28 U.S.C. § 1441; 28 U.S.C. § 1446.

The Seventh Circuit has

directed that, “[c]ourts should interpret the removal statute
narrowly and presume that the plaintiff may choose his or her
forum.

Any doubt regarding jurisdiction should be resolved in

favor of the states, and the burden of establishing federal
jurisdiction

falls

on

the

party

seeking

removal.”

Doe

v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations

1

Defendant Goddard states that the Notice is "being filed within
thirty (30) days after receipt by Defendant Goddard through service or
otherwise, of a copy of a pleading, motion, order or other paper from which it
may be first ascertained that the case is one which is or has become removable
in accordance with 28 U.S.C. § 1446(b)(3), and is therefore timely." (DE #2,
pp. 2-3.)

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omitted).
is proper.

The party seeking removal must demonstrate that removal
Boyd, 366 at 529.

“[I]t is not enough to file a

pleading and leave it to the court or the adverse party to negate
jurisdiction.”

Brill v. Countrywide Home Loans, Inc., 427 F.3d

446, 447 (7th Cir. 2005) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)).

When challenged, the party seeking

federal jurisdiction bears the burden of proving by a preponderance
of the evidence that a case belongs in federal court.

Meridian

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006).
Even where not challenged by a party, “federal courts are always
obliged to inquire sua sponte whenever a doubt arises as to the
existence of federal jurisdiction.”

Tylka v. Gerber Products Co.,

211 F.3d 445, 447 (7th Cir. 2000) (quotation marks and citation
omitted).

See also Smith v. American General Life and Acc. Ins.

Co., Inc., 337 F.3d 888, 892 (7th Cir. 2003) (A court has an
“independent obligation” to ensure that federal subject matter
jurisdiction exists.)

Subject-matter Jurisdiction
Defendant Goddard removed this case from state court based on
diversity

jurisdiction.

28

U.S.C.

§

1332.

For

diversity

jurisdiction to exist, the parties are required to have diverse
citizenship and the matter in controversy must exceed the sum or
value of $75,000.

28 U.S.C. § 1332(a).

must be properly alleged.

Diversity of citizenship

See Tylka, 211 F.3d at 447-48.
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“In

federal law citizenship means domicile, not residence.”

America’s

Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074
(7th Cir. 1992)(citing Gilbert v. David, 235 U.S. 561 (1915)).
“[R]esidence may or may not demonstrate citizenship, which depends
on domicile—that is to say, the state in which a person intends to
live over the long run.
deficient.”

An allegation of ‘residence’ is therefore

Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670

(7th Cir. 2012).

See also Tylka, 211 F.3d at 448 (Allegations of

residency are insufficient to establish diversity jurisdiction
because the terms citizenship or domicile are not synonymous with
residence.)
In this case, both the Complaint and the Notice of Removal are
silent as to the citizenship of any party.
describes

Plaintiff

Stranen

as

a

The Notice of Removal

resident

of

Illinois

Defendants Struble and Goddard as residents of Indiana.
insufficient to establish diversity jurisdiction.

and

This is

Furthermore,

neither the Complaint nor the Notice of Removal shed any light on
the citizenship or status of Mercantile National Bank, a named
party in this action. As such, the Notice of Removal is defective,
and

Defendant

Goddard

must

amend

his

Notice

of

Removal

to

adequately establish the citizenship of all named parties before
the Court can determine whether subject-matter jurisdiction is

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proper.2

See Heinen, 671 F.3d at 670; 28 U.S.C. § 1653 (defective

allegations of jurisdiction may be amended upon terms).

Defendant

Goddard must file the amended Notice of Removal no later than
January 24, 2013, or the Court may sua sponte issue a remand to the
Porter Superior Court for lack of subject matter jurisdiction.

Procedural Considerations
Even if diversity jurisdiction can be adequately established,
the Seventh Circuit has advised that not every case may be properly
removed. See Hurley v. Motor Coach Industries, Inc., 222 F.3d 377,
378 (2000).

For example, pursuant to the “forum defendant” rule,

a diversity action “may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of
the

State

1441(b)(2).

in

which
In

such

other

action
words,

is
a

brought.”

“home-state

28

U.S.C.

defendant”

§
is

technically incorrect in requesting removal because “[t]he primary
purpose behind removal in diversity cases is to allow an out-ofstate defendant to avoid potential bias when appearing in the
plaintiff’s chosen forum.”

Assaf, M.D. v. Trinity Medical Center,

696 F.3d 681, 684-85 (7th Cir. 2012).

This type of removal error,

however, is procedural rather than jurisdictional and may be waived

2

The Court notes that allegations of federal subject matter
jurisdiction should be made on personal knowledge, not on the basis of
information and belief; furthermore, only affidavits made on personal
knowledge have any value. America's Best Inns, Inc. v. Best Inns of Abilene,
L.P., 980 F.2d 1072, 1074 (7th Cir. 1992); see also Yount v. Shashek, 472
F.Supp.2d 1055, 1058, n. 1 (S.D.Ill. 2006).

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by a plaintiff if a motion to remand is not filed within 30 days
after the filing of the original notice of removal.

Id. at 685;

see also 28 U.S.C. 1447(c).
Additionally, a suit in which multiple defendants are named
“may not be removed unless all the defendants consent to removal.”
Save-A-Life Foundation, Inc. v. Heimlich, 601 F.Supp.2d 1005, 1007
(N.D. Ill. 2009) (citing McMahon v. Bunn-O-Matic Corp., 150 F.3d
651, 653 (7th Cir. 1998)).

“[A]ll defendants who have been

properly joined and served must join in or consent to the removal
of the action.”

28 U.S.C. 1446(b)(2)(A).

This type of defect in

the removal process is also non-jurisdictional, and a plaintiff’s
objection must be raised within 30 days or is forfeited.

McMahon,

150 F.3d at 653.
Finally, a notice of removal “shall be filed within 30 days
after the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based.”
§ 1446(b)(1).

28 U.S.C.

If the case is not removable based on the initial

pleading, “a notice of removal may be filed within 30 days after
receipt by defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which or has become
removable.”
limits

in

28 U.S.C. § 1446(b)(3).
section

1446(b)

are

not

Although the 30 day time
jurisdictional,

mandatory and strictly applied rules of procedure.
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they

are

Northern

Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th
Cir. 1982).
The procedural considerations described above have given the
Court pause upon its initial review of the Notice of Removal.

It

appears as though Defendant Goddard is a “home-state defendant” and
will not be entitled to removal if Plaintiffs object and file a
timely motion to remand.

It is also not clear from the record

provided whether Defendant Struble has been properly served in this
case, and, if so, whether he consents to the removal of the action.
Furthermore, questions remain regarding the timing of the filing of
the Notice; Defendant Goddard has not provided any information
related to a pleading, motion, order or other paper which made the
removability of this case first ascertainable.3
That

said,

because

these

types

of

errors

are

non-

jurisdictional, the Court will not rule on such concerns sua
sponte.

Instead, should Plaintiffs choose to timely file a motion

to remand pursuant to 28 U.S.C. 1447(c), the Court will address the
arguments raised upon receipt of such motion.

CONCLUSION
For the reasons set forth above, this Court ORDERS defendant
Joshua Goddard, d/b/a Cowboys Excavating, to submit an amended
Notice

of

Removal,

along

with

3

a

brief

and/or

any

documents

Defendant Goddard asserts that he was served with summons on or about
November 13, 2012; the Notice of Removal was filed with this Court
approximately 50 days later. (DE #2.)

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necessary, stating with precision the basis for the assertion of
diversity jurisdiction.

The amended Notice of Removal must be

filed no later than January 24, 2013, or the Court may sua sponte
issue a remand to the Porter Superior Court for lack of subject
matter jurisdiction.

DATED: January 17, 2013

/s/RUDY LOZANO, Judge
United States District Court

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