The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is plaintiff Kay L. Handlon's Motion to
Remand. Defendant, J.A. Jones Construction Company, has filed a
Petition to Remove this cause from the Circuit Court for the
Third Judicial Circuit, Madison County, Illinois.
The Court is faced with the question whether the filing by
defendant Jones of a Motion to Reconsider a state court order
dismissing defendant's third party complaint should prevent the
removal of this action to federal court. The Motion to
Reconsider was filed by the defendant minutes prior to the
filing of the Petition for Removal, apparently in an effort by
the defendant to follow case law in the Seventh
Circuit. Daniels v. McKay Machine Co., 607 F.2d 771 (7th Cir.
Daniels v. McKay Machine Co. stands for the proposition that a
timely filed motion to reconsider pending in state court may be
addressed by a federal court after removal to federal court has
been completed. The facts of Daniels are distinguishable,
however. The Daniels' Motion to Reconsider had been pending in
state court for about eight months at the time of removal. Here,
the Motion to Reconsider had been pending for about eight
The Court also notes that the Daniels court relied on General
Investment Co. v. Lake Shore & Mich. So. Ry. Co., 260 U.S. 261,
267, 43 S.Ct. 106, 110, 67 L.Ed. 244 (1922) in concluding that
a federal court may rule on a Motion to Reconsider pending in
state court at the time of removal. The General Investment case,
however, concerned whether a party was properly served, a
threshold determination by any court. Because it is fundamental
that a federal court must determine whether it has jurisdiction
over the parties, the General Investment ruling that a state
court finding of proper service may be reviewed by a federal
court after removal is factually distinguishable from the
matter before this Court.
In Daniels, the Motion to Reconsider was filed with the state
court with the objective of having the state court review its
own decision on a summary judgment motion. This is in contrast
with defendant Jones' filing of its Motion to Reconsider just
minutes before petitioning for removal.
The propinquity of the Motion to Reconsider and the removal
petition raises questions previously addressed by district
courts. While that waiver of the right to remove must be "clear
and unequivocal," Bedell v. H.R.C. Ltd., 522 F. Supp. 732 (E.D.Ky.
1981), a defendant may not use the removal statute as an avenue
to appeal an adverse state decision. Kiddie Rides USA, Inc. v.
Elektro-Mobiltechnik GMBH, 579 F. Supp. 1476 (C.D.Ill. 1984);
Bolivar Sand Co., Inc. v. Allied Equipment, Inc., 631 F. Supp. 171
(W.D.Tenn. 1986). In Kiddie Rides USA, a motion to vacate an
order of attachment was considered an attempt to use the removal
right as an appeal device. In Bolivar Sand, the case was removed
after a motion for directed verdict was denied. The motion was
made just after removal became possible. Bolivar Sand, at 171-72.
In this case, it appears that the defendant anticipated that
the filing of the Motion to Reconsider just prior to the
Petition to Remove would ensure that the Court would rehear
arguments already made by the defendant in state court. In
effect, defendant would be using its right to remove as an
appeal device to get a federal court to hear arguments rejected
in state court. It is just this use of removal that was
prohibited in Kiddie Rides USA, at 1480; and Bolivar Sand, at
173; see also Chicago Title & Trust Co. v. Whitney Stores, Inc.,
583 F. Supp. 575, 577 (N.D.Ill. 1984).
For these reasons, the Motion to Remand is GRANTED. IT IS
ORDERED that this cause of action be remanded to the Circuit
Court for the Third Judicial Circuit, Madison County, Illinois.
A certified copy of this Order shall be mailed by the Clerk the
this is Court to the Clerk of the Circuit Court of Madison
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