United States District Court, Northern District of Illinois, E.D
January 6, 1983
BARBARA ROMASHKO, ETC., PLAINTIFF,
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
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