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SAUER-DANFOSS INC. v. HANSEN

July 8, 2004.

SAUER-DANFOSS INC., Plaintiff,
v.
NIELS ERIK HANSEN. Defendant.



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the motion of Plaintiff Sauer-Danfoss, Inc. ("Plaintiff") to remand the case to state court. Defendant Niels Erik Hansen ("Defendant" or "Hansen") opposes the Motion.

BACKGROUND

  Plaintiff filed this lawsuit in the Circuit Court for the Nineteenth Judicial Circuit of Illinois in Lake County on November 13, 2003. The complaint alleges that Defendant Hansen accepted a position with one of Plaintiff's competitors in breach of his employment agreement with Plaintiff.

  Plaintiff had considerable difficulty serving the Defendant with the state court complaint. Under Illinois law, plaintiffs ordinarily have two options for serving defendants with process: personal service or abode service. 735 ILCS 5/2-203. However, if service upon an individual defendant using either of those methods "is impractical", Illinois law permits the plaintiff to move for an order directing a comparable method of service. 735 ILCS 5/2-203.1. On January 10, 2004 and January 18, 2004, the Plaintiff's process server went to Defendant's residence at 4431 Pebblecreek Lane in Long Grove, Illinois in attempts to effectuate service. On January 10, 2004, the process server heard movement inside the house as well as a voice saying "don't you dare answer the door." On January 18, 2004, the process server saw a female in the residence after he rang the doorbell; he also saw two persons, a male and a female, in the second-floor window of the house. When he informed these persons that he had a court summons for Mr. Hansen, they retreated inside the house.

  On February 3, 2004, Plaintiff moved for a special order of court directing comparable method of service pursuant to 735 ILCS 5/2-203.1. The state court granted the motion on February 11, 2004; it permitted Plaintiff to effectuate service through: mailing a copy of the Complaint to Defendant's business address in Winnipeg, Canada; attaching the Complaint to the Defendant's residence in Lake Grove; and mailing the Complaint to the Defendant's residence in Lake Grove. On February 14, 2004, a "Dorrit Hansen" (the Defendant's spouse) signed to receive a copy of the complaint that was sent through certified mail. On February 17, 2004, Plaintiff's process server attached a copy of the Complaint to the front door of Defendant's Lake Grove residence.

  On March 16, 2004, Defendant entered a special and limited appearance in the state court for the purpose of quashing the alternative service ordered by the state court.*fn1 Defendant contended that the affidavit supporting the motion for alternative service was insufficient under Illinois law. On May 3, 2004, prior to the Prior to the state court ruling on Defendant's Motion to Quash (which was scheduled for May 5, 2004), Defendant filed his notice of removal in federal court pursuant to 28 U.S.C. § 2246.

  This Court sua sponte ordered Defendant to supplement his notice of removal to explain why the removal was timely. Plaintiff simultaneously filed the Motion to Remand that is presently before the Court. Both parties concede diversity of citizenship and that the amount in controversy exceeds $75,000. The only issue presented in Plaintiff's Motion to Remand is whether Defendant's Notice of Removal was timely.

  I. DISCUSSION

  Federal law requires all notices of removal from state court to be filed within thirty days of the time that the defendant ascertains that the case is removable. 28 U.S.C. § 1446(b). The thirty day requirement is jurisdictional and cannot be waived. As with all potential jurisdictional defects, the burden of proof rests with the party seeking to establish federal jurisdiction; in this case, that is the Defendant.

  Defendant contends that his removal was timely for two reasons: (1) he claims that he was never properly served with process in State Court; and (2) he did not receive notice that the amount in controversy exceeded $75,000 until the Plaintiff filed a Motion for a Writ of Attachment on April 30, 2004. The Court will address each argument separately.

  A. State Court Service of Process

  As described above, the Plaintiff made reasonable efforts to obtain service in the prescribed manner under Illinois law. The residence where plaintiff's process server sought to serve Defendant is without question both the home of his wife, Dorrit Hansen and the address where a vehicle with Illinois license plates is registered to the Defendant. Plaintiff also believes (and Defendant does not deny) that this is Defendant's residence as well.*fn2 When Plaintiff's efforts to serve were thwarted by Defendant's deliberate avoidance of service, Plaintiff sought leave of the Court to effectuate service through an alternative means. The Court granted Plaintiff's motion. By February 17, 2004, Defendant's wife had signed for the certified mail containing a copy of the Complaint and summons and a copy of the Complaint and summons had been attached to the front door of his residence in Lake Grove, Illinois. This Court harbors no doubts that this service was proper under Illinois law. Consequently, Defendant's contention that he never received proper service is without merit.

  Moreover, in a case such as this, where the defendant has been served pursuant to a state court order, the Court doubts whether the Defendant's contention that such service was improper under the state's rules should have any effect on the time for filing a notice of removal. If it was clear from the state court complaint that the case was removable (a subject that will be addressed below), then the Defendant is confronted with the choice to either remove the case within thirty days to federal court or to fight the complaint (including the method of service) in state court. This case is easily distinguishable from Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), a case on which Defendant relies. In Murphy Brothers, the defendant received a faxed copy of the complaint some two weeks before receiving actual service. The Supreme Court held that it was the date of actual service that began the clock for removal, not the date of receipt of the fax. Here ...


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