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KIDDIE RIDES USA, INC. v. ELEKTRO-MOBILTECHNIK GMBH

February 10, 1984

KIDDIE RIDES USA, INC., PLAINTIFF,
v.
ELEKTRO-MOBILTECHNIK GMBH, DEFENDANT, AND GRAND TRUNK WESTERN RAILROAD COMPANY, GARNISHEE.



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

ORDER

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.

TIMELINESS

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) provides:

  "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 container.

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 wa ...


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