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ROMASHKO v. AVCO CORP.

United States District Court, Northern District of Illinois, E.D


January 6, 1983

BARBARA ROMASHKO, ETC., PLAINTIFF,
v.
AVCO CORPORATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Barbara Romashko ("Romashko") initially filed this action against Avco Corporation ("Avco") and a number of other defendants in the Circuit Court of Cook County, Illinois. Avco removed the action to this Court, and Romashko has moved for remand to the state court on the ground "all defendants have not joined in [the] removal." Romashko's motion is granted, though she has mistaken the precise reason remand is appropriate.

Although the general rule is "all defendants must join in a removal petition in order to effect removal," Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 (7th Cir. 1982), nominal, unknown or fraudulently joined defendants may be disregarded, 1A Moore's Federal Practice ¶ 0.168[3.-2], at 448-49 (1982). Nor need a nonserved nonresident defendant join in a removal petition. Id. at 452.

This Court does not however reach that level of inquiry, because Avco has failed at the threshold to satisfy a prerequisite that is a corollary to the just-stated rules. It is defendant's burden under the removal statute (28 U.S.C. § 1446(a)) to explain affirmatively the absence of codefendants in the petition for removal, and failure to set out such an explanation renders the removal petition defective. Northern Illinois Gas, 676 F.2d at 273; P.P. Farmers' Elevator Co. v. Farmers Elevator Mutual Ins. Co., 395 F.2d 546, 548 (7th Cir. 1968); 1A Moore's Federal Practice ¶ 0.168[3.-4], at 458-59.

Avco did not explain the absence of its codefendants in its removal petition. This case must be and is remanded to the Circuit Court of Cook County, for even though the action was potentially removable "the procedure used to effect removal was defective and plaintiff did not waive the defect." P.P. Farmers' Elevator, 395F.2d at 548.*fn1


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