28 U.S.C. § 1446(b) would not matter since plaintiffs raised no untimeliness objection within 30 days of removal. See 28 U.S.C. § 1447(c). Still, if removal was pursuant to § 501(l)(3), it may be that removal to the District Court of the District of Columbia would have been the proper venue, not this district. See FSLIC v. Westgate Partners, Ltd., 726 F. Supp. 807 (D. Colo. Dec. 12, 1989). Since it is otherwise found that this court lacks jurisdiction for removal, it is unnecessary to resolve if removal was to the wrong district.
In a recent case, the Seventh Circuit considered whether a defendant can waive the right to remove a case by action taken in the state court. See Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir. 1989). In that case, the Seventh Circuit quoted Moore's, which states the right to remove "is not lost by action in the state court short of proceeding to an adjudication on the merits." Rothner, 879 F.2d at 1415 (quoting 1A Moore's Federal Practice para. 0.157 at 153 (2d ed. 1987)). In dictum, the Seventh Circuit added, "That is not to say, however, that district courts are without power to remand in extreme situations. One can imagine a case in which the suit is fully tried before the statutory period has elapsed and the defendant then files a petition for removal."
There is no jurisdiction to remove a case if no case or controversy exists. Maine Association of Interdependent Neighborhoods, Inc. v. Petit, 700 F. Supp. 75, 77 (D. Me. 1986). A number of cases hold that removal is not possible where the case has reached final judgment in the state court. See Four Keys Leasing & Maintenance Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988); Ristuccia v. Adams, 406 F.2d 1257, 1258 (9th Cir.) (per curiam), cert. denied, 396 U.S. 1, 90 S. Ct. 24, 24 L. Ed. 2d 3 (1969); MHM Sponsors Co. v. Permanent Mission of Pakistan, 672 F. Supp. 752, 753 (S.D.N.Y. 1987); FSLIC v. Templeton, 700 F. Supp. 456, 457-58 (S.D. Ind. 1988). Simithis and Ristuccia, however, were cases in which the highest courts of the state had already denied review. In MHM, the state court had dismissed the case, denied reconsideration, and removed the case from its calendar. A motion to restore the case to the calendar was pending at the time of removal. In Templeton, the FSLIC became a party after oral arguments in the state appellate court and the federal district court held a case on appeal from a final judgment could not be removed. In FDIC v. Klayer, 519 F. Supp. 889, 890-91 (E.D. Ky. 1981), removal of a counterclaim-crossclaim was denied for lack of a pending case because the state court had not yet permitted filing of the proposed counterclaim-crossclaim. Other courts have denied removal where motions for reconsideration were pending on the ground that removal should not be used as a means to appeal a state court decision to federal court. See Handlon v. Allis-Chalmers Coal Gas Corp., 666 F. Supp. 153, 154 (S.D. Ill. 1987); Kiddie Rides USA, Inc. v. Elektro-Mobiltechnik GmbH, 579 F. Supp. 1476, 1479-80 (C.D. Ill. 1984); Bolivar Sand Co. v. Allied Equipment, Inc., 631 F. Supp. 171, 172-73 (W.D. Tenn. 1986); In re 73rd Precinct Station House, 329 F. Supp. 1175, 1178 (E.D.N.Y. 1971). However, since those cases rely on the right to remove being waived, their vitality in the Seventh Circuit is doubtful in light of Rothner's rejection of waiver.
A number of cases have held that cases can be removed after the entry of a default judgment and that the federal court can then consider whether to vacate the default. See Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963); Munsey v. Testworth Laboratories, 227 F.2d 902 (6th Cir. 1955) (per curiam); Robert E. Diehl, Inc. v. Morrison, 590 F. Supp. 1190, 1192 (M.D. Pa. 1984); Kizer v. Sherwood, 311 F. Supp. 809, 811 (M.D. Pa. 1970). See also Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir. 1985). Only one case has been found that permitted removal after final judgment where the judgment was not one by default. In In re Savers Federal Savings & Loan Association, 872 F.2d 963 (11th Cir. 1989), the FSLIC was appointed conservator of a bank after the entry of judgment in a state court suit. The FSLIC timely removed the case within thirty days and before the time for filing a state court appeal had expired. The FSLIC then filed a notice of appeal to the Eleventh Circuit. The Eleventh Circuit held that it had jurisdiction over the appeal. Id. at 965-66.
In light of the dictum in Rothner and the Seventh Circuit's generally narrow interpretation of federal jurisdiction, it is believed the Seventh Circuit would follow those courts that hold there is generally no jurisdiction to remove closed cases. Such a position is consistent with both the requirement of a case or controversy and principles of comity. See Templeton, 700 F. Supp. at 458. The present case appears to be most like MHM, supra. The motion to vacate filed in state court appears to have been filed more than 30 days after the entry of judgment. Therefore, the time for filing a Rule 2-1301(e) motion (the equivalent of Fed. R. Civ. P. 59(e)) had expired as has the time for appeal. The motion to vacate could still be brought under Rule 2-1401 (the equivalent of Fed. R. Civ. P. 60(b)), but that is a motion brought in a closed case. Unless the state court grants that motion, there is no pending case in state court. Therefore, there was no case or controversy to remove and this court lacks subject matter jurisdiction over the case.
The above discussion assumes that the order entered on August 29 was a final judgment. As previously mentioned, that is not clear from the record before the court. It is, however, what defendant has represented to this court to be true. The burden is on the parties to show this court has jurisdiction. It is assumed that the August 29 order was final and that this court lacks jurisdiction over the case. If it was not an order dismissing the entire case, then defendant can timely move for reconsideration of today's order remanding the case. Any motion for reconsideration would also have to address the question of whether removal was to the proper district.
IT IS THEREFORE ORDERED that this action is remanded to the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois. Two weeks after the entry of this order, the Clerk of the Court shall take the necessary steps to accomplish such transfer. Each party shall bear its own costs of removal.
Dated: JANUARY 2, 1990
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