United States District Court, Northern District of Illinois, E.D
April 18, 1985
HERMAN HARDESTY, PLAINTIFF,
GENERAL FOODS CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
General Foods Corporation ("General Foods") and Entenmann's,
Inc. ("Entenmann's") have just filed a petition for removal of
this action from the Circuit Court of Cook County. Because
General Foods and Entenmann's have asserted they received
service of the summons and complaint March 15 and because they
petitioned for removal April 15, removal was accomplished on
the thirtieth and last day permitted by
28 U.S.C. § 1446(b).*fn1
What General Foods and Entenmann's have failed to do, however,
is to comply with the requirements of Section 1446(a), under
which all defendants must join in or consent to the removal
petition. Northern Illinois Gas Co. v. Airco Industrial
Gases, 676 F.2d 270, 272 (7th Cir. 1982). There are limited
exceptions to that requirement (see, e.g., Mason v. IBM,
543 F. Supp. 444, 445-46 & n. 1 (M.D.N.C. 1982)), but General Foods
and Entenmann's are totally silent on the applicability of any
of those exceptions. Nor has this Court heard independently
from the other two defendants (Dairy Equipment Co., a division
of DEC International, Inc. and Heil Co.) reflecting their
joinder in or consent to removal.
As this Court said in Romashko v. Avco Corp., 553 F. Supp. 391,
392 (N.D.Ill. 1983):
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.
At this point Section 1446(b)'s 30-day limitation has passed,
and amendment to the petition in an effort to cure the defect
would be improper. Mason, 543 F. Supp. at 446.*fn2
Accordingly this Court finds this case to have been "removed
improvidently" (Section 1447(c)) and sua sponte remands this
action to the Circuit Court of Cook County. General Foods and
Entenmann's are ordered to pay any costs and disbursements that
may have been incurred by reason of the removal.