Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SCHMUDE v. SHEAHAN

April 22, 2002

JOAN SCHMUDE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LOUIS SCHMUDE, PLAINTIFF,
V.
MICHAEL SHEAHAN, COOK COUNTY SHERIFF, WILLIAM SPATZ, PATRICIA PULTZ, AND LARRY KOSCIANSKI, DEFENDANTS.



The opinion of the court was delivered by: Charles R. Norgle, Sr. District Judge.

OPINION AND ORDER

Before the court is the motion of Defendant, William Spatz, to remand this case to the Circuit Court of Cook County. The motion is opposed by the removing Defendant, the Sheriff of Cook County. For the following reasons, the motion is denied.

I. BACKGROUND

This case arises out of the death of Louis Schmude while he was in the custody of the Cook County Sheriff's Department. Plaintiff (hereinafter "the Estate")*fn1 claims that Defendants are liable under 42 U.S.C. § 1983 and various state law theories for damages arising out of Schmude's death. A detailed background concerning the timing of various pleadings is necessary to place the instant motion to remand in context.

On June 20, 2000, the Estate filed its original complaint in the Circuit Court of Cook County. The original complaint named only one Defendant, the Sheriff of Cook County. The Sheriff was served with the complaint on June 27, 2000. On July 26, 2000, a judge in the Circuit Court of Cook Count granted the Estate leave to file an amended complaint, naming three individual Sheriff's Deputies, William Spatz, Patricia Pultz, and Larry Koscianski, as additional Defendants.

On July 27, 2000, the Sheriff filed a notice of removal in this court. Attached to the Sheriff's notice of removal was a copy of the original complaint, which named only the Sheriff as Defendant. At the time of removal, it is undisputed that the Sheriff was the only Defendant that had been served with process.*fn2

After removal, the individual Defendants did not appear, answer, or otherwise plead. On December 12, 2000, the Estate filed a motion for default. On December 22, 2000, counsel for Spatz and Koscianski filed their appearances, and also filed motions to be appointed special state's attorneys in their representation of Spatz and Koscianski. The court stayed discovery at least until it decided the motions concerning appointment of special state's attorneys.

Five days later, on December 27, 2000, Spatz filed a motion to remand, and a separate motion to stay or extend his time to answer or otherwise plead. Also on December 27, 2000, counsel for Pultz filed an appearance. The court took under advisement Spatz's and Koscianski's motions to have their counsel be appointed special state's attorneys. On December 29, 2000, the court stayed all proceedings in the case until further notice.

Beginning in the early part of 2002, Spatz, Koscianski, and Pultz were prosecuted in Illinois state court for the death of Louis Schumde. In a bench trial, all three were acquitted of the charges against them.

On March 18, 2002, after the criminal prosecution had ended, Spatz filed a renewed motion to remand this case to the Circuit Court of Cook County. At a hearing on the motion, counsel for Spatz and Koscianski withdrew their motions to be appointed special state's attorneys, and the court ordered briefing on the remand issue. The remand dispute is between the Sheriff and Spatz, with Spatz arguing that the removal was defective, and the Sheriff taking the opposite view. Briefing having seen completed, the issue is ripe for ruling.

II. DISCUSSION

Spatz argues that the Sheriff's removal was defective because the Sheriff did not obtain the consent of the other Defendants, including Spatz, when the Sheriff effected removal. The Sheriff counter; that at the time it removed the case, none of the other Defendants had been served, and therefore, obtaining their consent was unnecessary. Spatz replies that as a defendant, he has an absolute veto power over removals, and his lack of consent requires remand. As discussed below, Spatz's argument is without merit.

The district court's authority to remand a case to state court is determined by the terms of the removal statute and the limits of the court's subject matter jurisdiction. See In re Continental Casualty Co., 29 F.3d 292, 293-95 (7th Cir. 1994); Buchner v. F.D.I.C., 981 F.2d 816, 819-20 (5th Cir. 1993); Commonwealth Edison Co. v. International Broth. of Elec. Workers, 961 F. Supp. 1154, 1164-65 (N.D. Ill. 1996); Casey v. Hinckley & Schmitt. Inc., 815 F. Supp. 266, 267 (N.D. Ill. 1993); Wright Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3739, pg. 467 (West 1998). In other words, the court does not have authority to remand a case that is within its jurisdiction, unless the removal statute permits the court to do so. In re Continental Casualty Co., 29 F.3d at 293-95; Buchner, 981 F.2d at 819-20; Commonwealth Edison Co., 961 F. Supp. at 1164-65. Generally, the removal statue is strictly construed, with an eye towards limiting federal jurisdiction. See e.g. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S.Ct. 1322, 1330 (1999) (Rehnquist, J. dissenting); Getty Oil Corp. v. Insurance Company of North America, 841 F.2d 1254, 1263 n. 13 (5th Cir. 1988). At the same time, however, the court does not have the authority to act outside the bounds of the removal statute, so as to relinquish its properly invoked jurisdiction. See In re Continental Casualty Co., 29 F.3d at 293-95; Buchner v. F.D.I.C., 981 F.2d 816, 819-20 (5th Cir. 1993); Commonwealth Edison Co., 961 F. Supp. at 1164-65; Casey 815 F. Supp. at 267; Wright Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3739, pg. 467 (West 1998). This principle is well illustrated by the Seventh Circuit's opinion in In re Continental Casualty, which reversed a district court's sua sponte remand due to a procedural defect in removal. Writing for the court, Judge Easterbrook strictly construed § 1447(c), and ruled that the statute requires a party's motion to remand, so that it was error for the district court to sua sponte remand because of a non-jurisdictional defect. In re Continental Casualty Co., 29 F.3d at 293-95. It is with this strict construction in mind that the court examines the removal in this case.

As a preliminary matter, there is no dispute that the court has subject matter jurisdiction, as the Estate plainly states claims for relief under 42 U.S.C. ยง 1983. Accordingly, the decision to remand is to be determined according to the terms of the removal statute. See In ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.