Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
HELLER v. KOMATSU FORKLIFT CO.
December 9, 1994
CLAYTON HELLER, Plaintiff,
KOMATSU FORKLIFT COMPANY, LTD., et al., Defendants.
The opinion of the court was delivered by: MILTON I. SHADUR
This Court's December 5, 1994 memorandum opinion and order (the "Opinion") identified both some jurisdictional and some non-jurisdictional problems posed by the Notice of Removal (the "Notice") filed by Wisconsin Lift Truck Corp. ("WLT"). Because it appeared quite likely that the flaws would prove to be curable, even though 28 U.S.C. § 1447(c)
literally mandated remand to the state court, this Court deferred transmittal of the mailing of the remand order until December 15, 1994 under this District Court's General Rule ("GR") 30(b).
WLT yesterday filed a timely Petition for Reconsideration coupled with an Amendment to the Notice. Although everything reflected in that current filing could and should have been set out in the original Notice, federal practice (particularly federal jurisdiction) is not based on a grading system--except of course when it is first being learned in law school. No practitioner's failing grade need prove fatal to the practitioner's client (though that can certainly happen--see, e.g., the line of cases exemplified by Link v. Wabash R.R., 370 U.S. 626, 633-34, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962)).
In this instance the missing information as to citizenship (discussed in Opinion at 2-3) has now been provided, establishing the existence of federal jurisdiction in the diversity-of-citizenship terms defined by Section 1332. And the nonjoinder of all served defendants (discussed in Opinion at 4) has been cured by the timely consent to removal that has now been filed by Komatsu Forklift (U.S.A.), Inc.
(it is timely because we are still within the 30-day time clock from the earliest time that any defendant (in this case WLT) was served; see Scialo v. Scala Packing Co., 821 F. Supp. 1276 (N.D. Ill. 1993) and cases cited there).
That leaves open only WLT's counsel's careless choice of the Eastern Division instead of the Western Division of this Northern District of Illinois as the situs for removal, in contravention of Section 1446(a). That kind of mistake would appear to be expressly curable under Section 1406(a),
and this Court orders that this action be transferred to the Western Division for the Northern District of Illinois. This time there is no reason for delay, and as authorized in GR 30(a) this Court directs that the case be transferred forthwith.
Senior United States District Judge
Buy This Entire Record For