United States District Court, Eastern District of Illinois
December 2, 1974
TONI PERRIN, PLAINTIFF,
CHARLES E. WALKER ET AL., DEFENDANTS.
The opinion of the court was delivered by: Foreman, District Judge:
This action was originally instituted in the Circuit Court
of St. Clair County, Illinois. Defendants, Yellow Freight
Systems and Byron L. Harris, filed a timely Petition for
Removal in this Court pursuant to 28 U.S.C. § 1446.
Jurisdiction was predicated upon diversity of citizenship. The
other defendants, Charles E. Walker and Lindberg Cadillac
Leasing Company did not join in or otherwise consent to the
within the thirty (30) day period allotted in
28 U.S.C. § 1446(b).*fn1 Subsequently, defendants Walker and Lindberg
Cadillac Leasing filed a consent and joinder in removal. The
consent and joinder was filed approximately forty (40) days
after Walker and Lindberg were served. Later, plaintiff moved
to remand on the ground that not all defendants had consented
to the removal within the requisite limitation period.
Yellow Freight and Harris, the defendants who filed the
original removal petition, have filed a memorandum opposing
the remand, contending that (1) the thirty-day statutory
limitation is not jurisdictional and (2) that when a
co-defendant consents to the removal after the expiration of
the thirty-day period, but before the filing of a motion to
remand, the consent of the co-defendant "relates back" to the
filing of the removal petition.
The right of removal and the procedure for removal are
entirely statutory. 28 U.S.C. § 1441 et. seq. Moreover, the
removal statutes must be strictly construed and a federal court
may encroach upon a state court's right to determine cases
properly brought before the state court only with the express
authority given by Congress. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214
(1941); Bradley v. Maryland Casualty Co., 382 F.2d 415 (8th
Cir. 1967); Hoyt v. Sears, Roebuck & Co., 130 F.2d 636 (9th
Cir. 1942); Resident Advisory Board v. Tate, 329 F. Supp. 427
(E.D.Pa. 1971); Wood v. DeWeese, 305 F. Supp. 939 (W.D.Ky.
1969); Proteus Foods and Industries, Inc. v. Nippon Reizo
Kabushiki, 279 F. Supp. 876 (S.D.N.Y. 1967).
There is no allegation that this suit contains separate and
independent claims or causes of action pursuant to
28 U.S.C. § 1441(c).*fn2 Absent such a claim, the general rule is that
all defendants except purely nominal defendants who have been
served and who could join in the removal petition must
join.*fn3 Chicago, Rock Island and Pacific Railway Co. v.
Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900);
Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and
Assistants' Local 349, 427 F.2d 325 (5th Cir. 1970); P. P.
Farmers' Elevator Co. v. Farmers Elevator Mutual Insurance Co.,
395 F.2d 546 (7th Cir. 1968); Bradley, supra; Coogan v. DeBoer
Properties Corp., 354 F. Supp. 1058 (S.D.Tex. 1973).
Several courts have held that compliance with the 30-day
time limitation for removal action is not a jurisdictional
pre-requisite. Adams v. Western Steel Buildings, Inc.,
296 F. Supp. 759 (D.Colo. 1969); Meyers-Arnold Company v. Maryland
Casualty Company, 248 F. Supp. 140 (D.S.C. 1965).
The fact that the filing of the removal petition within the
limitation period is not a jurisdictional pre-requisite is not
dispositive of the issue in the instant action. The
determination that compliance with the time limits is not
jurisdictional merely permits a federal court to hear the case
when the plaintiff waives his right to have the action
remanded to the state court. In this
action, there has been no such waiver and the important issue
is whether the Court must strictly enforce the statutory
limits when presented with a motion to remand.
Both the great weight of authority and the better reasoning
support the proposition that the time limitation is mandatory
and must be strictly applied and where a party fails to file
a petition within the applicable time limits, he is precluded
from doing so. Vendetti v. Schuster, 242 F. Supp. 746 (W.D.Pa.
1965); Seigler v. American Surety Company, 151 F. Supp. 556
(N.D.Cal. 1957); Sunbeam Corp. v. Brazin, 138 F. Supp. 723
(E.D.Ky. 1956); Biscup v. People, 129 F. Supp. 765 (W.D.N Y
Thus, under the prevailing view, neither a stipulation of
the parties nor an order of the state court may extend the
time to file a removal petition. Sunbeam Corp., supra; Burns v.
Standard Life Insurance Co. of Indiana, 135 F. Supp. 904 (D.Del.
1956). In addition, the federal district court does not have
authority to extend this time period pursuant to Rule 6(b),
Federal Rules of Civil Procedure. Lusk v. Lyon Metal Products,
9 F.R.D. 250 (W.D. Mo. 1949); Hamilton v. Hayes Freight Lines,
102 F. Supp. 594, 597 (E.D.Ky. 1952). Nor does Rule 6(e) enlarge
the time for removal. Youngson v. Lusk, 96 F. Supp. 285, 289
In Crawford v. Fargo Manufacturing Co., Inc., 341 F. Supp. 762
(M.D.Fla. 1972), the court was confronted with a factual
situation very similar to the one in this action. In that case
where one defendant filed a timely petition for removal and
the other defendant did not file a joinder or consent until
after the statutory limitation and after the plaintiff had
moved to remand the action to the state courts, the court held
that the case must be remanded. It stated:
"The strict constructional standards [of the
removal statute] considered in tandem with the
policy of resolving doubt in favor of state court
jurisdiction and the absence of any waiver on the
part of the plaintiff convinces this court that
plaintiff's motion to remand is well taken and
ought to be granted." (341 F. Supp. at 764).
Other courts have also held that the failure of one of the
defendants to take affirmative action seeking removal until
after the 30-day time limitation has expired may not be cured
retroactively. Manis v. North American Rockwell Corp.,
329 F. Supp. 1077 (C.D.Cal. 1971); Maybruck v. Haim, 290 F. Supp. 721
(S.D.N.Y. 1968); Norwich Realty Corp. v. United States
Fire Insurance Co., 218 F. Supp. 484 (D.Conn. 1963).
Therefore, plaintiff's Motion to Remand this action is
hereby granted. It is hereby ordered that this action be
remanded to the Circuit Court, Twentieth Judicial Circuit, St.
Clair County, Illinois.