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PERHATS ASSOCS. v. FASCO INDUS.

February 7, 1994

PERHATS ASSOCIATES, INC., et al., Plaintiff,
v.
FASCO INDUSTRIES, INC., et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Codefendants Fasco Industries, Inc. ("Fasco") and von Weise Gear Company ("von Weise") have filed a Notice of Removal (the "Notice") of this diversity-of-citizenship action from the Circuit Court of the Nineteenth Judicial District, Lake County, Illinois. This is the second Fasco-von Weise attempt at removal--on the first go-around this Court was compelled to remand the case sua sponte on October 19, 1992 because of a then-existing subject matter jurisdictional problem: the absence of a factual showing by Fasco and von Weise of the requisite more-than-$ 50,000 amount in controversy as to any of the 16 plaintiffs. Now Fasco and von Weise have set out the recently-derived information that, they contend in Notice PP 14 and 15 (together with accompanying Exhibits H, I & J), has first established the monetary predicate for federal jurisdiction.

 All of plaintiffs' claims as stated in their Complaint are unliquidated in amount, with no indication there as to how much any plaintiff is actually claiming (that was the problem that forced the original remand). Once the case was returned to the Circuit Court, Fasco and von Weise therefore served early interrogatories in an effort to ascertain the scope of plaintiffs' money claims. Whether in an effort to avoid removal or otherwise, plaintiffs continued to delay the disclosure of both (1) the identity of their expert witnesses (stating that the witnesses had not yet been selected) and (2) thus necessarily the opinions of any such witnesses. *fn1" Finally on January 10, 1994 plaintiffs did disclose the identity of their damages expert, coupled with a disclosure of his methodology for calculating damages (Notice Ex. H). Notice Exs. I and J then set out the Fasco-von Weise calculation of each plaintiff's claim based on that methodology--and in every instance the claim far exceeds the $ 50,000 threshold. *fn2"

 Under the 1988 enactment of the Judicial Improvements and Access to Justice Act, the removal provisions of 28 U.S.C. ยง 1446(b) *fn3" were modified to deal in this fashion with the situation in which the potential for removal becomes apparent only at some time after a lawsuit is first filed in the state court:

 
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

 Fasco and von Weise have plainly met the 30-day test by acting just 23 days after the basis for plaintiffs' claims was first quantified for them--but they are foreclosed from the current removal by the same provision's unequivocal prohibition on removal more than one year after the action was first brought on September 3, 1992.

 It is quite true that Congress' no-exceptions enactment of that one-year time bar may lend itself to stonewalling or other delaying tactics by a plaintiff or plaintiffs who are bound and determined to stay clear of what they may view as the clutches of a federal court. But the statutory language is crystal-clear, and federal judges do not sit as superlegislators to amend or repeal the work of Congress.

 Professor David Siegel's commentary on the 1988 revision, which is reproduced at pages 3 and 4 of the 1993 pocket part to the United States Code Annotated volume containing Sections 1446 to 1650, contains an enlightening and useful discussion of the one-year time bar provision. In doing so, Professor Siegel specifically identifies the prospect of mandatory dismissals such as the one compelled here. In relevant part the Professor makes the point that Congress fully realized the risks built into such an unconditional time limitation but chose to enact the legislation in the current form anyway:

 
The amendment puts a one-year cap on removal if the purported basis for the federal jurisdiction is the diversity of citizenship of the parties.
 
* * *
 
The result in a given case is made to depend on the procedural variations--and perhaps the procedural eccentricities--of the particular state's practice. The amendment may sometimes give too much control to the state court plaintiff who wants to resist a removal to the federal court at all costs.
 
* * *
 
The one-year cutoff therefore has an anti-diversity ring to it. Congress acknowledged this, but called it a "modest curtailment."

 To be sure, the result dictated by Section 1446(b) is regrettable. It puts a premium on a party's ability to devise what may well be characterized as dubious litigation tactics. But it should also be pointed out that counsel for Fasco and von Weise had ample opportunity to exercise some ingenuity of their own to avoid the current outcome. Even if a better way to smoke out plaintiffs' position had not occurred to defense counsel on their own, as far back as May of last year this Court expressly identified the way to do so in its dissent in Shaw v. Dow Brands, Inc., 994 F.2d 364, 376 (7th Cir. 1993) (certain footnotes omitted)--indeed ...


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