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August 12, 2003


The opinion of the court was delivered by: Robert Gettleman, District Judge


Plaintiff filed a putative class action complaint on March 12, 2003, in the Circuit Court of Cook County, Illinois, seeking damages, injunctive relief, and attorneys' fees under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., arising from defendants' alleged marketing of the epilepsy drug Neurontin for "off-label" uses. On April 4, 2003, without leave of court and before defendants had filed any appearance, plaintiff filed an amended complaint which omitted her prayer for injunctive relief. Defendants were not served with the amended complaint until April 23, 2003, however, two days after they had already removed the instant action to this court on the basis of plaintiff's original complaint.

On May 21, 2003, plaintiff moved to remand the instant case to state court, contending that "any grounds for removal which may have been present in the original Complaint are no longer before this court" because plaintiff's original complaint was superseded by her amended complaint, which plaintiff contends does not permit either diversity or federal subject matter jurisdiction. For the reasons stated herein, the court concludes that the operative complaint for [ Page 2]

purposes of removal is plaintiff's original complaint, which did not provide a basis for either diversity or federal question jurisdiction.


The propriety of removal is determined on the basis of plaintiff's pleading as it existed at the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347 (1939); Shannon v. Shannon, 965 F.2d 542, 545 (7th Cir. 1992); Momans v. St. John's Northwestern Military Academy, Inc., No. 99 C 8510, 2000 WL 33976543, at *2 (N.D.Ill. April 20, 2000). The threshold task in evaluating plaintiff's motion to remand, then, is to determine which complaint controlled at the time defendants removed the instant case. Defendants maintain that the original complaint is not superseded by the amended complaint because, (1) plaintiff did not obtain leave of court to file her amended complaint "in violation of state procedural requirements," and (2) defendants were not properly served with the amended complaint prior to removal. Because the court concludes that the issue of seeking leave to amend is dispositive, the court need not reach defendants' arguments regarding service.

The court agrees with defendants that, under 735 ILCS 5/2-616(a), plaintiff was required to obtain leave of court before filing her amended complaint. Section 2-616(a) provides:

At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim. [Emphasis added.]
The rules governing Illinois civil practice do not appear to contemplate an amendment as a matter of course prior to a responsive pleading. Compare Fed.R.Civ.P. 15(a) ("A party may [ Page 3]

amend the party's pleading once as a matter of course at any time before a responsible pleading is served. . . .").

That a party may waive an objection to his opponent's failure to seek leave to amend is of no consequence. See Ragan v. Columbia Mutual Ins. Co., 183 Ill.2d 342, 355 (1998) (finding that "failure to obtain leave to amend a complaint is not a jurisdictional defect and that a party may waive its right to object to the defect"). The question before the court is not whether failure to obtain leave under Section 2-616(a) is jurisdictional and thus not avaivable on appeal, but rather whether Section 2-616(a) directs parties to seek leave of court before amending their pleadings.

Plaintiff directs the court's attention to Fischer v. Senior Living Properties, L.L.C., 329 Ill. App.3d 551 (Ill.App. 4th Dist. 2002), for the proposition that Section 2-616(a) is "directory" rather than "mandatory." This distinction, however, does not alter the court's conclusion. In Fischer, the plaintiff's attorney sought leave to amend his complaint, but the judge failed to timely sign the order granting leave to amend. In declining to invalidate the filing of the amended complaint, the appellate court characterized the failure to obtain the judge's signature as a "minor technicality" and "directory," and further noted that the plaintiff had "substantially complied" with Section 2-616(a). Id. at 513. In the instant case, in contrast, plaintiff is not in substantial compliance with Section 2-616(a) because she never sought leave to file her amended complaint. Thus, the court concludes that plaintiff's amended complaint does not supersede the original complaint, and the original complaint is the operative complaint for purposes of defendants' removal petition.

Defendants argue that the original complaint was removable on the basis of both federal [ Page 4]

question and diversity jurisdiction. Looking to the original complaint, the court concludes that, (1) the original complaint did not support federal question jurisdiction, and (2) given the lack of an ad damnum clause in the original complaint, defendants' failure to comply with Local Rule 81.2 of the Northern District of Illinois merits a remand of the instant case to state court.

As a starting point, the court notes that the burden of establishing federal jurisdiction falls on the party seeking removal. Doe v. Allied-Signal. Inc., 985 F.2d 908, 911 (7th Cir. 1993), citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct, 35 (1921). Further, any doubt regarding jurisdiction should be resolved in favor of state courts. Allied-Signal, Inc., 985 ...

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