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Alsup v. 3-Day Blinds

June 8, 2006

RONALD ALSUP, ET AL., PLAINTIFFS,
v.
3-DAY BLINDS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

This action is before the Court on the Motion to Remand brought by Plaintiffs Ronald Alsup, Robert Crews, and Magnum Properties, LLC (Doc. 65). For the following reasons, the motion is GRANTED.

BACKGROUND

This case, which was filed initially in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, is a putative nationwide class action against sixty-two manufacturers and/or sellers of window blinds.*fn1 Plaintiffs allege that certain window blinds manufactured and/or sold by Defendants are dangerous because they are equipped with cords in excess of 7 1/4 inches in length, thus posing a risk of strangulation to children and infants. Plaintiffs allege that Defendants sold the window blinds at issue with the knowledge that they are dangerous, and that Defendants, in cooperation with federal authorities, including the United States Consumer Product Safety Commission ("CPSC"), developed a repair for the blinds that Defendants knew would be ineffective, but which they falsely represented to consumers as making the blinds safe. Plaintiffs' complaint asserts claims for negligence (Count I), violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 - 505/12 (Count II), breach of implied warranty (Count III), breach of express warranty (Count IV), civil conspiracy (Count V), breach of implied warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 - 2312 (Count VI), and for declaratory and injunctive relief (Count VII).

Shortly after this action was filed in state court on February 17, 2005, it was timely removed to this Court on April 20, 2005, by Defendant Mitchell Blind and Shade Company ("Mitchell"). Federal subject matter jurisdiction was asserted on the basis of 28 U.S.C. § 1334 and 28 U.S.C. § 1452, as well as on the basis of 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.), and 28 U.S.C. § 1441. Thereafter, the Court remanded the case to state court for lack of subject matter jurisdiction.

See Alsup v. 3-Day Blinds, No. Civ. 05-287-GPM, 2005 WL 2094745 (S.D. Ill. Aug. 25, 2005). On this second removal of the case to this Court, Defendant Lowe's Home Centers, Inc. ("Lowe's"), which was served with Plaintiffs' complaint on February 24, 2006, and which removed the case to this Court on March 24, 2006, asserts that federal subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1442, governing removal of cases from state court to federal court by federal officers or persons acting under the direction of such officers. Plaintiffs have moved for remand of the case to state court for lack of subject matter jurisdiction.

DISCUSSION

A. Legal Standard

A defendant seeking removal bears the burden of establishing federal subject matter jurisdiction. See Disher v. Citigroup Global Mkts. Inc., 419 F.3d 649, 654 (7th Cir. 2005). Federal removal jurisdiction is statutory in nature and is to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Removal is proper if it is based on permissible statutory grounds and if it is timely. See Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). Doubts concerning removal must be resolved in favor of remand to the state court. See McCoy v. General Motors Corp., 226 F. Supp. 2d 939, 943 (N.D. Ill. 2002).

B. Timeliness of Removal

Plaintiffs challenge the timeliness of Lowe's removal of this case in light of the earlier, unsuccessful attempt by Mitchell to remove the case to this Court. Specifically, Plaintiffs assert that any allegations of federal jurisdiction under 28 U.S.C. § 1442 should have been raised on the earlier removal, and that the Court is foreclosed from considering the propriety of removal under section 1442. The Court disagrees.

While it is true that the Court's previous Order remanding this case to state court established the law of the case as to the existence of subject matter jurisdiction in this case under 28 U.S.C. § 1334 and 28 U.S.C. § 1332, see Midlock v. Apple Vacations W., Inc., 406 F.3d 453, 457 (7th Cir. 2005), on the prior removal of this case the Court was not asked to make, and did not make, any findings with respect to whether removal of this case might be proper under 28 U.S.C. § 1442. See Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979) ("The doctrine of law of the case comes into play only with respect to issues previously determined."); Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1032 (7th Cir. 1997) ("Law of the case . . . applies only to issues that were decided . . . but not to questions which might have been decided but were not."). Thus, the Court's prior Order remanding this case does not pose any obstacle to consideration on the second removal of the case of the existence of federal subject matter jurisdiction under section 1442.

Further, the removal statutes permit successive removals of an action, provided an adequate factual basis exists for a later removal. In Benson v. SI Handling Systems, Inc., 188 F.3d 780 (7th Cir. 1999), the court stated, "Nothing in [28 U.S.C.] § 1446 forecloses multiple petitions for removal." Id. at 782. "[I]f subsequent pleadings or conduct by the parties or various other circumstances brings a case that was not previously removable within the removal jurisdiction of the federal courts, a second notice of removal is permissible." 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice & Procedure § 3739 (3d ed. 1998 & Supp. 2005) (collecting cases). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 493 (5th Cir. 1996) ("[A] remand order that expressly addresses the theory of federal jurisdiction does not have [preclusive] effect on subsequent removals based on the same theory, provided that the subsequent removal petitions allege a different factual basis for seeking removal."); O'Bryan v. Chandler, 496 F.2d 403, 408-12 (10th Cir. 1974) (permitting a second removal pursuant to 28 U.S.C. § 1442 where facts disclosed after the prior remand of the action established the existence of federal subject matter jurisdiction under the statute); Nicholson v. National Accounts, Inc., 106 F. Supp. 2d 1269, 1271 (S.D. Ala. 2000) (the mere fact that case was previously remanded does not, by itself, automatically preclude a defendant from filing a second notice of removal; the defendant may remove a previously remanded case if subsequent pleadings or events reveal a new and different basis for removal); One Sylvan Road N. Assocs. v. Lark Int'l, Ltd., 889 F. Supp. 60, 62-64 (D. Conn. 1995) (allowing a second removal of a case in diversity jurisdiction, but finding that the evidence developed in state court after the initial remand failed to show that the jurisdictional amount in controversy was satisfied).

Finally, Plaintiffs' argument ignores the settled rule that removal under 28 U.S.C. § 1442 can be effected by any defendant in an action, with or without the consent of co-defendants. See, e.g., Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998); Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir. 1965); County of Wayne v. Bank of Bloomfield Hills, No. 02 72766, 2002 WL 31777581, at *1 n.2 (E.D. Mich. Oct. 18, 2002); Torres v. CBS News, 854 F. Supp. 245, 246 n.2 (S.D.N.Y. 1994); Bottos v. Avakian, 477 F. Supp. 610, 611 n.3 (N.D. Ind. 1979). See also Seth Peterson Cottage Conservancy, Inc. v. Goodyear Tire & Rubber Co., No. 03-C-393-C, 2003 WL 23221149, at *4 (W.D. Wis. Oct. 27, 2003). Thus, a defendant entitled to claim federal jurisdiction under section 1442 can do so within thirty days of service of a complaint, even if co-defendants failed to assert such jurisdiction in a timely manner. See Plourde v. Ferguson, 519 F. Supp. 14, 16 (D. Md. 1980) (removal pursuant to section 1442 was timely where a defendant properly removed the case within thirty days of receipt of the initial pleading in the case, notwithstanding the fact that an ...


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