Polus et al v. Bell et al

Filing 22

MEMORANDUM OPINION AND ORDER granting 15 Motion to Remand to State Court. Case is hereby remanded to Jasper Superior Court. (certified copy of order mailed this date to Jasper Superior Court). Signed by Judge Allen Sharp on 1/12/09. (mlc)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE
L OIUS POLUS et al., ) ) P l a i n t if fs , ) v. ) ) S UE ANN BELL, TRUSTEE OF THE ) D OROTHY JEAN SORENSEN TRUST et al.,) ) D efe n d a n ts. )

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MEMORANDUM OPINION & ORDER T h is matter is before the Court on a Motion to Remand filed on December 2, 2008 by p lain tiff s Louis Polus, Robert Forbes, Karl Bapst, Richard Laughlin, Randy Vankley, David B is s e ll, Cheryle Lewandowski, John Sumara, Dan Lewandowski, Norma Mateer, Jack M a te e r, Caroline Turnpaugh, Don Gizel, Patricia Gizel, Joel Chermak, and Shirley Forbes (" p lain tiff s " ) on behalf of themselves and as residents of a subdivision known as "Scully S q u a r e ." On October 28, 2008, plaintiffs filed an amended complaint in the Jasper Superior C o u rt alleging violations of their `personal, property, and constitutional rights,' stemming fro m the construction of a mobile home in the Sculley Square subdivision. (Docket 1 at 3). P la in tif f s allege that the construction of said mobile home was in contravention of a re stric tin g covenant covering lots in Sculley Square, and in violation of a local zoning o rd in a n c e . Id.

D e f e n d a n t, County of Jasper, Indiana, ("Jasper County") removed this matter to f e d era l court from the Jasper Superior Court on November 12, 2008, based on alleged federal c o n s titu tio n a l violations. See 28 U.S.C. §1331; 28 U.S.C. §1343; 28 U.S.C. §1367. Plaintiffs filed a motion to remand the proceeding to state court on December 2, 2008. (D o ck et No. 15). In their motion to remand, plaintiffs argue that defendant Jasper County's n o tice of removal is legally deficient and Jasper County has failed to comply with Indiana's O p e n Door Law. Id. Generally, under 28 U.S.C. §1446(a), a removing party must include in the notice of re m o v a l a "short and plain statement of the grounds for removal." The statutory language c a llin g for a "short and plain statement" was the result of the 1988 Amendment to section 1 4 4 6 contained in the Judicial Improvements and Access to Justice Act. At the time, the H o u se Committee reported that the change was a reaction against a trend in some courts to re q u ire detailed pleading upon removal. See H.R. Rep. No. 100-889, at 71-72 (1988), as re p rin ted in 1988 U.S.C.C.A.N. 5982, 6032; Lonny S. Hoffman, Burn up the Chaff with U n q u e n c h ab le Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power O v e r Pleadings, 88 B.U. L. Rev. 1217, 1245 (2008) (stating, "the 1988 amendment reflects a congressional intent that §1446 should mirror Rule 8 and what was perceived to be its lib e ra l pleading standard."). Although plaintiffs contend that the "short and plain statement" contained in d e f en d a n t's notice of removal is insufficient, this argument ignores the liberal pleading

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re q u ire m e n t inherent in the amended language of §1446. Although defendant's statement in the notice of removal is somewhat vague, so too is the description of the alleged federal c o n stitu tio n a l claim contained in plaintiff's amended complaint.1 Furthermore, it is evident f ro m the legislative history surrounding §1446 that detailed pleading is not required in order f o r removal to be properly pled. Accordingly, plaintiffs' first argument in favor of a remand is unavailing. However, plaintiffs' second argument presents a problem for the defendants. As a r u l e , removal to federal court under 28 U.S.C. §1441 requires a petition joined by all d e f e n d a n ts. McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir.1998); Northern Illin o is Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 (7th Cir.1982). In the instant case, only defendant Jasper County filed and signed the notice of re m o v a l. Although defendants claim to have fulfilled the requirements of §1441 by stating in the notice of removal that "[a]ll served Defendants consent to removal," this is not enough to avoid remand to the state court. To the contrary, Seventh Circuit precedent is clear that w h e n a notice of removal is not supported in writing by all defendants, remand is required.

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Specifically, paragraph 11 of plaintiffs' amended complaint states: By filing their appeal to the Board of Zoning Appeals (sic) the Sculley Square Neighbors were exercising their personal, privacy and property rights, statutory rights, constitutional rights to assemble, to petition government Authority (sic) and to exercise free speech, all protected by the U.S. Constitution and Indiana State Constitution. Furthermore, such rights are protected by Indiana statute IC 34-7-7-5 and further Protected (sic) by Federal Civil Rights Act, 42 U.S.C. 1983 (herinafter referred to as "Protected Rights"). (Docket No 1 at 5). 3

G o s s m e ye r v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997) (holding that "all served d e f en d a n ts still have to support the petition in writing, i.e., sign it"); Roe v. O'Donohue, 38 F .3 d 298, 300 (7th Cir. 1994) ("To `join' a motion is to support it in writing . . ."). This Court is aware that the remaining defendants subsequently submitted affidavits re p re se n tin g their consent to removal. However, these affidavits were submitted outside of th e 30 day window provided for in 28 U.S.C. §1446(b). Though most cases on point, such a s Gossmeyer, deal with the failure on the part of the plaintiffs to make a timely objection to improper removal, here the plaintiffs made their objection to Jasper County's improper re m o v a l within 30 days of said removal. Accordingly, because plaintiffs' objection was tim e ly and because defendant Jasper County failed to provide timely evidence of all d e f en d a n ts ' written consent to removal, remand is required. A lth o u g h the requirements for proper removal may seem technical, they are neither o n e ro u s nor unduly burdensome. Moreover, since this case is at its infancy, remand to the s ta te court is not inconsistent with justice. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 76-77 (1 9 9 6 ). Thus, this Court GRANTS the motion to remand, and REMANDS this case to the s ta te court from whence it was removed. SO ORDERED. D A T E D : January 12, 2009 /s/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT

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