United States District Court, Central District of Illinois, Rock Island Division
February 10, 1984
KIDDIE RIDES USA, INC., PLAINTIFF,
ELEKTRO-MOBILTECHNIK GMBH, DEFENDANT, AND GRAND TRUNK WESTERN RAILROAD COMPANY, GARNISHEE.
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
was in fact the complaint filed on November 9.
In their discussion of the "time for seeking removal", Wright,
Miller and Cooper state:
"The fundamental principle of the statute is that the
time limitation on seeking removal begins to run when
defendant receives notice of the action, not when the
action is commenced." Wright, Miller, and Cooper,
Federal Practice and Procedure: Civil, § 3732.
"By its own terms, then, the statute does not require
an action to be filed before a petition for removal
will be entertained.
It is the `receipt' of the `initial pleading'
pursuant to section 1446 which controls
removability." Perimeter Lighting, Inc. v. Karlton,
456 F. Supp. 355, 358-359 (N.D.Ga. 1978).
In the Karlton, case, the defendant filed a petition for
removal after a temporary restraining order had been entered
against him even though no complaint had been filed with the
clerk of the state court. At the hearing on the temporary
restraining order, the plaintiff had delivered to the defendant
and the presiding judge a copy of a complaint but one week later
filed a complaint which differed from that which he had delivered
at the TRO hearing. While the complaint delivered at the TRO
hearing presented complete diversity and, therefore, would have
permitted removal, the complaint as actually filed included other
parties and complete diversity was not present and removal would
have been improper. The Court held that an "initial pleading" as
used in the statute:
". . . must constitute a clear statement of the case
which will allow the defendant to examine the basis
for the action. In particular, the initial pleading
must be such that the defendant can intelligently
ascertain removability from its face." Karlton, 456
F. Supp. at 358 (citations omitted).
The Court, under the facts presented, concluded:
"In effect, then, the state court had taken action on
a case not yet of record. To deny defendant's right
to remove in such a situation would allow plaintiff
to effectively block defendant's right to remove
until such time as plaintiff sees fit to file the
complaint. Such a holding would work to defeat the
removal statute's purpose and allow a plaintiff to
keep an action, otherwise removable, in the state
court even after the state court had exercised its
power by enjoining the defendant. Here there has been
an initial pleading, received by the defendant at a
court proceeding at which the court's power was
exercised over defendant. Certainly that is all which
section 1446(b) requires to give rise to a right of
removal." Karlton, 456 F. Supp. at 359.
In Williams v. Beyer, 455 F. Supp. 482 (D.C.N.H. 1978), a
dispute arose between the parties regarding the terms of a
contract. The contract provided that any disputes were to be
resolved through the use of arbitration and, therefore, the
plaintiff filed a petition for appointment of arbitrator in the
county court of New Hampshire. The petition set forth the diverse
residency of the parties and indicated that the amount in
controversy was $15,000. The defendant filed an answer and a
cross-petition. The court ordered the parties to proceed to
arbitration and the arbitrator eventually entered an award in
favor of the plaintiff. Several months later the plaintiff filed
an application for confirmation of the award in the county court
and the defendant attempted to remove the action and filed a
motion to vacate the arbitration award. The court held that the
time period with respect to the removability of the action began
when the court entered its order directing the parties to proceed
to arbitration because "at that point in time, the defendant knew
full well that there was a dispute between diverse parties and
that the plaintiff was then claiming the sum of $15,000 in
damages". Williams, 455 F. Supp. at 484.
Accordingly, the time period for seeking removal begins to run
when the Defendant receives a pleading from which he can
clearly ascertain that the action is removable.
In our case, the Defendant or his agent had, prior to November
8 (30 days prior to the petition for removal being filed), been
served with the affidavit of attachment which provided the
Defendant with a "clear statement" that the case involved diverse
parties and that the requisite amount in controversy was
involved. Consequently, the Defendant or his agent was aware of
the facts necessary to determine that the action was removable
before November 8, 1983.
Defendant EMT, in opposition to the motion to remand, has
asserted that under Illinois law the complaint was the initial
pleading in this case and, therefore, removal was timely.
However, the Illinois statutes dealing with attachment indicate
According to § 4-104, the plaintiff must file a statement,
which may be embodied in the affidavit, indicating that the
"action invoked" by the affidavit does or does not sound in tort.
(Ill.Rev.Stat. ch. 110, ¶ 4-104). If the court is satisfied that
the affidavit is proper and a prima facie case established, the
order of attachment shall be entered.
Following entry and service of the order:
"The defendant may answer, denying the facts stated
in the affidavit upon which the order of attachment
was entered which answer shall be verified by
affidavit; and if, upon the trial thereon, the issue
shall be found for the plaintiff, the defendant may
answer the complaint or file a motion directed
thereto as in other cases. . . ." Ill.Rev.Stat. 110,
Thus the statute specifically indicates that the action is
"invoked" by the affidavit and provides that the defendant may
answer challenging the facts in the affidavit. In fact, the
complaint need not even be filed until ten (10) days before the
return day of the order or, at the latest, five (5) days after
the return day (Ill.Rev.Stat. ch. 110, ¶ 4-130).
Consequently, it is the affidavit of attachment*fn1 which
constitutes the initial pleading in this case, and, when it is
received by the defendant, the time period for removal commences.
Defendant in further response to the motion to remand claims
that EMT itself did not receive notice of the attachment until
November 17. However, at oral argument on this motion,
Defendant's attorney admitted that he had received the attachment
order and affidavit prior to November 8, 1983. While it is true
that service on a statutory agent is not sufficient to commence
the time period, service on an agent in fact is. Wright, Miller
and Cooper, Federal Practice and Procedure, Jurisdiction: § 3732.
Under the facts of this case, EMT cannot rely on its lack of
knowledge to control the time at which the period for removal
commenced. It is sufficient for the purposes of § 1446 that EMT's
attorneys had knowledge of all the facts necessary to determine
Accordingly, the petition for removal was not filed within 30
days of the initial pleading and the case must be remanded. The
Court will also address Plaintiff's other arguments in support of
In certain circumstances, the Defendant will be deemed to have
waived his right to removal. To constitute a waiver of the right
to removal, there must be a clear and unequivocal waiver on the
part of the defendant. Bedell v. H.R.C. Ltd., 522 F. Supp. 732
(E.D.Ky. 1981); Beasley v. Union Pac. R. Co., 497 F. Supp. 213
(D.C.Neb. 1980). The defendant must seek some affirmative action
or relief in the state court, the mere filing of an answer or
general defense short of the merits does not constitute a waiver.
See Bedell, supra; Beasley, supra.
However, the Defendant may not, after having argued and lost an
issue in state court, remove the action to federal court for what
is in effect an appeal of the adverse decision. O.G. Orr & Co. v.
Fireman's Fund Ins. Co., 36 F.2d 378 (S.D.N.Y. 1929); In Re 73rd
Precinct Station House, Borough of Brooklyn, 329 F. Supp. 1175
All things being equal, the Court would probably deny remand
based solely on the waiver grounds. However, the background of
this case indicates that Plaintiff may simply be seeking review
of the adverse state decision. After the order of attachment was
entered, Defendant entered a special appearance and moved to
vacate the order of attachment. It was not until that motion had
been denied that Defendant sought removal.
The actions taken by the Defendant combined with the
untimeliness of the removal, are sufficient to constitute a
waiver on the part of the Defendant.
JOINDER OF ALL DEFENDANTS
Plaintiff's final argument in support of remand is that all of
the named Defendants failed to join in the petition for removal.
While it is well settled that all of the Defendants must join in
a petition for removal, Gableman v. Peoria, 179 U.S. 335, 337, 21
S.Ct. 171, 172, 45 L.Ed. 220 (1900), named defendants who are
merely nominal or formal may be disregarded and need not join in
the petition. Ryan v. State Board of Elections of the State of
Illinois, 661 F.2d 1130, 1134 (7th Cir. 1981); Wright, Miller and
Cooper, Federal Practice and Procedure: Jurisdiction § 3731.
The Court finds that the Defendant Grand Trunk, as garnishee,
is merely a nominal party and its absence from the petition for
removal does not require remand. Farmer's Bank v. Hayes, et al.,
58 F.2d 34 (6th Cir. 1932). Grand Trunk has no real interest in
this litigation, it merely being the party who happened to have
possession of the container at the time the order was issued.
Accordingly, IT IS ORDERED that the Plaintiff's Motion to
Remand is GRANTED and the case is REMANDED back to the Circuit
Court of Rock Island County.