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April 26, 1990

LOT DELGADO, IRENE R. DELGADO, MIDLOTHIAN STATE BANK, and UNKNOWN OTHERS, Defendants. LOT DELGADO, et al., Counterclaimants, v. THE DARTMOUTH PLAN, INC., et al., Counterdefendants

William T. Hart, United States District Judge.

The opinion of the court was delivered by: HART


 Presently before the court is defendants' motion to remand this case to the state court from which it was removed. It is first necessary to set forth the relevant proceedings that occurred in state court. *fn1"

 In 1985, defendants Lot and Irene Delgado had improvements done on their home. A retail installment contract was used to finance the improvements. Plaintiff The Dartmouth Plan, Inc. provided financing and thus obtained a second mortgage on the Delgado's residence. Counterdefendant National City Bank purchased the mortgage from Dartmouth, but Dartmouth continued to service the mortgage. The Delgados subsequently claimed that the work done on their home was defective and apparently stopped paying the mortgage. They also claim that certain documents were backdated to prevent them from exercising their rescission rights under the federal Truth in Lending Act ("TILA") and that other acts of fraud were committed. In July 1987, Dartmouth brought a foreclosure suit against the Delgados. The suit was filed in the Circuit Court of Cook County, Illinois and also named Midlothian State Bank, the holder of the first mortgage, as a defendant. The Delgados answered the complaint in August 1987, raising affirmative defenses of procedural and substantive unconscionability. At the time, the Delgados apparently did not yet know that Dartmouth had assigned the mortgage to another.

 On December 8, 1989, the Delgados filed their Amended Answer and Counterclaim. In addition to Dartmouth, they named National City Bank, Old Republic Insurance Company, and Household Bank as counterdefendants. The counterclaim was alleged to be a class action. The affirmative defenses and counterclaims included claims under the Illinois Consumer Fraud and Deceptive Business Practices Act, the Sales Finance Agency Act, TILA, and the Illinois Retail Installment Sales Act and a breach of contract claim. On January 24, 1990, the Delgados filed the Second Amended Answer and Counterclaim. Francisco Salazar, Jane Salazar, Geraldine Love, Sugar Hudson, and Linda Hudson were added as named class plaintiffs on the counterclaim. Three officers of Dartmouth; Citibank, N.A.; Northeast Savings, F.A.; First Cook County Federal Savings & Loan Association; Norwood Federal Savings Bank; N.B.D. Bank Evanston, N.A.; N.B.D. Arlington Heights Bank; Security Federal Savings & Loan Association; European American Bank; Goldome Bank; Madison Bank; and Madison Bank & Trust Company were added as counterdefendants. The counterclaims and defenses were still under the same statutes and common law theories.

 On February 22, 1990, the Third Amended Answer and Counterclaim was filed. No new parties were added. Some of the statutory counts were restated in more than one count each. Claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") were added as to all defendants and an action to quiet title was separately stated as regards Dartmouth. On March 23, 1990, counterdefendants National City Bank, European American Bank, Goldome Bank, Northeast Savings, F.A., and Security Federal Savings & Loan Association filed their notice of removal to federal court. Defendants moved for a remand within 30 days. Five of the counterdefendants filed written statements that they do not consent to removal. Eight other counterdefendants did not express their views.

 The removing counterdefendants must overcome three hurdles in order to show that removal was proper under 28 U.S.C. §§ 1441 and 1446. They must show that they are proper parties to remove, that the removal was timely, and that the claims against them are separate and independent. The removal fails on all three of these grounds.

 In their pleadings, defendants labeled the removing parties as counterdefendants. In the notice of removal, the removing parties stated they should be more properly characterized as third-party defendants. Defendants point to this characterization by the removing parties and argue that third-party defendants cannot remove. See Thomas v. Shelton, 740 F.2d 478 (7th Cir. 1984). The legal characterizations stated in a complaint, however, are not controlling; the factual allegations are ordinarily what controls. In this case it is not actually the facts alleged in the complaint, but the nature of the proceedings that have already occurred. In determining the removing parties' proper characterization, federal law controls. Chicago, Rock Island & Pacific R.R. v. Stude, 346 U.S. 574, 579-80, 98 L. Ed. 317, 74 S. Ct. 290 (1954); C.A. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3731 at 502-03 (2d ed. 1985).

 The removing parties are not properly characterized as third-party defendants. Third-party claims are those in which a defendant claims a third-party is liable to the defendant for all or part of the plaintiff's claim against the defendant. See Thomas, 740 F.2d at 486; Fed.R.Civ.P. 14(a). Defendants are not seeking to hold any of the alleged counterdefendants liable to defendants for any liability defendants may owe to plaintiff. Instead, defendants allege counterdefendants are directly liable to them for injuries to defendants.

 The removing parties argue that they should not be considered counterdefendants who have no right to remove because the removing parties are not themselves plaintiffs. Apparently, only one published case addresses this issue and it holds that such counterdefendants cannot remove. Tindle v. Ledbetter, 627 F. Supp. 406, 407 (M.D.La.1986). The removing parties in this case are properly characterized as counterdefendants. A counterclaim is any suit by a defendant against the plaintiff including any claims properly joined with the claims against the plaintiff. See Fed.R.Civ.P. 13(a)-(C). A counterdefendant need not also be a plaintiff. See Fed.R.Civ.P. 13(h).

 In determining whether removal is appropriate, the focus is on the original complaint. Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 10, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); Elkhart Cooperative Equity Exchange v. Day, 716 F. Supp. 1384, 1387 (D.Kan.1989); Tindle, 627 F. Supp. at 407. The claims against the counterdefendants were not part of the original case. It is recognized that a counterdefendant who is not a plaintiff does not voluntarily choose to bring suit in state court and thus can be viewed in a different light than the counterdefendant who is also a plaintiff. Compare Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106, 85 L. Ed. 1214, 61 S. Ct. 868 (1941). The Seventh Circuit, however, has indicated that third-party claims that would be removable if in a suit separate from the first-party action are not removable when joined with the first-party action because federalism principles and the language of § 1441 militate against allowing a third-party action to bring otherwise nonremovable claims into federal court with it. See Thomas, 740 F.2d at 486; Elkhart, 716 F. Supp. at 1388. Like the nonplaintiff counterdefendant, a third-party defendant is a party who has not voluntarily chosen to be in state court. But just as a third-party has no special rights to remove, neither does a nonplaintiff counterdefendant. A counterdefendant is not a defendant joined in the original action and therefore not a party that can remove a state action to federal court. *fn2"

 Even if the counterdefendants should be considered defendants under §§ 1441(a) and 1446(a), their petition was not timely and defendants have, within 30 days, raised an objection to the timeliness of counterdefendants' notice of removal. See 28 U.S.C. § 1447(c). Section 1446(b) provides that the notice of removal must be filed within 30 days of service of the original complaint or any subsequent pleading or other paper from which it first became apparent that the action was removable. Since counterdefendants were not parties to the original complaint, that document does not control as regards the timing of removal. National City Bank is the only removing party that was named in the first Amended Answer. The Amended Counterclaim contained a federal cause of action, the TILA claim, but it is unnecessary to determine the effect on timeliness of the First Amended Counterclaim since the Second Amended Counterclaim otherwise makes the notice of removal untimely.

 The Second Amended Counterclaim includes a federal TILA count and names all the present counterdefendants including all the parties who seek removal. Counterdefendants contend they could not remove the Second Amended Counterclaim because it was withdrawn prior to the expiration of the thirty days allowed for removal. Counterdefendants, however, do not point to any document or court transcript showing the Second Amended Counterclaim was withdrawn. Defendants contend they were merely granted leave to file an amended complaint. They also fail to point to any document or transcript showing this, but the burden of showing timeliness is on the removing parties. In any event, the Third Amended Counterclaim was on file prior to the expiration of the 30 days. It is well settled that amending an otherwise removable complaint does not, absent special circumstances, extend the time for filing the removal petition. Wright, Miller, & Cooper, § 3732 at 525. The mere filing of an amended complaint within 30 days did not give counterdefendants an additional 30 days to file their notice of removal.

 Counterdefendants argue that the Third Amended Counterclaim falls within the exception discussed in Wilson v. Intercollegiate (Big Ten) Conference Athletic Association, 668 F.2d 962 (7th Cir.), cert. denied, 459 U.S. 831, 74 L. Ed. 2d 70, 103 S. Ct. 70 (1982). If an amended complaint so changes the nature of an action as to constitute "substantially a new suit", id. at 965 (quoting Fletcher v. Hamlet, 116 U.S. 408, 410, 29 L. Ed. 679, 6 S. Ct. 426 (1886)), or "an entirely new and different suit", id. at 965 (quoting Cliett v. Scott, 233 F.2d 269, 271 (5th Cir.), cert. denied, 352 U.S. 917, 77 S. Ct. 215, 1 L. Ed. 2d 123 (1956)), then a defendant is given additional time to seek removal. Counterdefendants argue defendants' various amendments and the relation of this suit to other suits against Dartmouth indicate a deliberate attempt to prevent removal. Since the Third Amended Counterclaim does not constitute a new and different suit, it is unnecessary to resolve questions of defendants' motives. *fn3" See Wilson, 668 F.2d at 966. The Third Amended Counterclaim did not change the "basic legal theory," id., as to what actions of counterdefendants constituted the wrongdoing. The new theories that counterdefendants claim were added were alleged in the Second Amended Counterclaim. The Third Amended Counterclaim only separated into multiple counts some theories that had been combined in single counts in the Second Amended Counterclaim. RICO claims were added, but they relied on the same wrongdoing and a pattern of illegal activity had ...

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