The opinion of the court was delivered by: Mihm, District Judge.
This is a breach of contract action between Plaintiff, an Iowa
corporation in the business of selling amusement rides and their
accessories, and Defendant, Elektro-Mobiltechnik (EMT), a foreign
corporation with its principal place of business in West Germany.
The Plaintiff and Defendant EMT entered into two contracts which
provided that Plaintiff would purchase Kiddie Rides' products
from EMT for resale in the United States. Plaintiff alleges that
it performed all conditions of the contract but the Defendant
breached the contract in several respects. Plaintiff seeks
judgment in the amount of $85,000.
The complaint was originally filed on November 9, 1983 in the
Circuit Court of Rock Island County and was removed to Federal
Court on December 8, 1983 by the Defendant EMT. The Plaintiff has
moved to remand the case to state court based on three arguments:
1. That the Petition for Removal was not timely filed.
2. That the Defendant waived its right to removal by
participating in the state court proceedings.
3. That the Petition for Removal is defective because all
Defendants did not join in the Petition.
A hearing on the Plaintiff's motion to remand was held on
February 2, 1983.
For its first argument, the Plaintiff contends that while the
petition for removal was filed within 30 days of the time the
complaint was filed, the complaint was not the "initial pleading
setting forth the claim for relief upon which such action or
proceeding is based" 28 U.S.C. § 1446(b). Section 1446(b)
"The petition for removal of a civil action or
proceeding shall be filed within 30 days after the
receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which action or
proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not
required to be served on the defendant, whichever
period is shorter."
The Plaintiff claims that the "initial pleading" was not the
complaint but the affidavit for attachment filed on October 12,
1983. The affidavit for attachment indicated that Robert H.
Versman, as president of Kiddie Rides, Inc. had an $85,000 claim
against EMT, a West German corporation, for breach of contract.
Further, Mr. Versman stated that EMT would have property
consisting of a container with Kiddie Ride items in it valued at
approximately $52,665 and that the Defendant, Grand Trunk Western
Railroad Company, would have actual physical custody of the
Based on this affidavit, an order of attachment was issued on
October 12, 1983 directing the sheriff of Cook County to attach
the container of Kiddie Rides in the possession of Defendant
Grand Trunk. In addition, the Defendants were summoned to appear
in the Circuit Court of Rock Island County on November 4, 1983.
On November 4, 1983, the Defendant EMT made a special
appearance and filed a "Motion to Vacate Order of Attachment".
The chronology of events then proceeds as follows: the Plaintiff
filed the complaint herein on November 9, 1983; the State Court
denied the "Motion to Vacate Order of Attachment" on November 10,
1983; the Defendant EMT removed the case to Federal Court on
December 8, 1983; and the Defendant filed a notice of appeal in
state court of the denial of its "Motion to Vacate Order of
Attachment" on December 9, 1983.
With this background, the Court must consider whether the
affidavit of attachment should be considered the initial pleading
in this case or whether the initial pleading