HARRIS et al. v. MIRACLE et al.

Filing 76

ORDER directing Clerk of Court to strike prior Judgment 71 in this case, re-open this case, and then REMAND this cause to the Hamilton County, Indiana, Superior Court. Signed by Judge Larry J. McKinney on 10/3/07. (PG)

HARRIS et al. v. MIRACLE et al.

Doc. 76

Case 1:07-cv-00681-LJM-TAB

Document 76

Filed 10/03/2007

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

BRANDON JOE HARRIS, et al., Plaintiffs, vs. MIRACLE APPEARANCE RECONDITIONING SPECIALISTS INTERNATIONAL, INC., et al., Defendants.

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1:07-cv-681-LJM-TAB

ORDER This case pends on Plaintiffs' Emergency Final Three (3) Page Motion for Reconsideration. The Court acknowledges that it made a mistake in the dismissal of this matter. The Court has but two choices under the factual circumstances of this case: it must either deny Plaintiffs' Motion to Amend and retain federal jurisdiction or it must remand the case to the state court from which it was removed. See Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, FEDERAL PRACTICE AND PR O C E D U R E § 3723, at 595 (West 1998) (citing 28 U.S.C. § 1447(e)). As stated in the Emergency Motion, "[o]n August 30, 2007, Plaintiff[s] moved for leave to file [their] Second Amended Complaint in order to destroy diversity and remove all federal questions...." While it is true that Schillinger v. Union Pacific Railroad Co., 425 F.3d 330 (7th Cir. 2005), opines that: "When a plaintiff amends his complaint after removal in a way that destroys di versit y, a district Court must consider the reasons behind the amendment in determining whether the remand is proper. If the plaintiff amended simply to destroy diversity the district court should not remand." A closer reading of the case does teach that the two alternatives stated above are the only ones available and does not suggest the third, dismissal, which this Court imposed. The Court

Dockets.Justia.com

Case 1:07-cv-00681-LJM-TAB

Document 76

Filed 10/03/2007

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granted the Motion to Amend for the reasons stated on the record and now REMANDS this case back to the Hamilton County Superior Court from which it was removed.

CONCLUSION For the reasons stated herein, the Clerk of the Court is directed to strike the prior Judgment in this case (Docket No. 71), re-open this case, and then REMAND this cause to the Hamilton County, Indiana, Superior Court. IT IS SO ORDERED this 3rd day of October, 2007.

_______________________________ _____________________________________ LARRYRRMcKINNEY, CHIEF JUDGE LA J. Y J. McKINNEY, CHIEF JUDGE UnitednStates District Court U ited States District Court Southernthern District of Indiana Sou District of Indiana

Electronically distributed to: Philip Adam Davis DAVIS & SARBINOFF LLP [e-mail] Alan S. Brown LOCKE REYNOLDS LLP [e-mail] Darren Andrew Craig LOCKE REYNOLDS LLP [e-mail]

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