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Omi's Custard Co. v. Relish This

August 24, 2006


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



On February 22, 2005, the Court issued an Order (Doc. 20) in this matter, finding that because of a lack of subject matter jurisdiction -- specifically, the minimum amount in controversy was not met under 28 U.S.C. § 1332 -- the case should be remanded back to state court. In accordance with this finding, Plaintiff's Motion to Remand (Doc. 5) was granted and the case was remanded to the Circuit Court, Third Judicial Circuit, Madison County, Illinois, for further proceedings. Madison County Circuit Court thereby acknowledged receipt of the Court's remand letter on February 28, 2005 (see Doc. 22).

Exactly one year later, defendants V&L Tool, Inc. ("V&L"), filed a Motion for Reconsideration of the Court's Remand Order (Doc. 23), pursuant to FEDERAL RULE OF CIVIL PROCEDURE 60(b). Plaintiff has filed its opposing Response (Doc. 27), to which V&L has filed its Reply (Doc. 31). Although defendant cites circumstantial evidence that appears to indicate suspicious behavior, perhaps gamesmanship, on the part of Plaintiff, the principles of comity and the Federal Rules of Civil Procedure weigh against granting V&L's Motion.



Allegedly, defendant Relish This, LLC ("Relish This"), sold Plaintiff a defective custard machine, which was manufactured and distributed by V&L (Doc. 2, ¶¶ 3, 7). Plaintiff thereafter filed suit in state court against both Relish This and V&L, seeking rescission of the purchase of the custard machine and consequential damages. Defendant, believing diversity jurisdiction existed, removed the case to this Court, whereby Plaintiff filed a timely remand motion. Plaintiff prevailed on its remand motion because it asserted that the purchase price of the custard machine was only $39,800.00 and the consequential damages could not yet be determined, but could possibly include lost profits. As V&L could not meet its burden to show proper subject matter jurisdiction existed at the time of removal, the Court found remand was warranted.

Very recently, Plaintiff submitted to V&L a "Pro Forma Estimate of Damages," estimating its lost profits at an amount in excess of $300,000.00 (see Doc. 23 - Declaration of Nora E. Gierke, Ex. D). This disclosure was made, according to V&L, "only after the one year deadline for removal lapsed . . ." despite V&L's repeated and fruitless efforts to secure a damages calculation from Plaintiff (Doc. 24, p. 4). As a result, V&L believes Plaintiff's "blatant misconduct" in failing to reveal its damages estimate until only after removal under the Federal Rules of Civil Procedure was no longer possible, supports reconsideration.


V&L now moves the Court to reconsider its remand Order (Doc. 23), arguing that Plaintiff misrepresented the amount in controversy it sought (Doc. 24). According to V&L, under Rule 60(b), a showing of fraud or newly discovered evidence allows reconsideration of an order. Id. The amount now sought by Plaintiff, more than $300,000.00, was not disclosed to V&L until after the one year deadline for removal, as set forth under 28 U.S.C. § 1446(b).

Plaintiff responds in opposition, claiming that a federal court cannot reconsider its own order remanding a case to state court (Doc. 27, citing 28 U.S.C. § 1447(d); Consolidated Doors, Inc. v. Mid-America Door Co., 120 F. Supp. 2d 759 (E.D. Wis. 2000)). In the alternative, Plaintiff contends V&L's Motion falls outside the one-year deadline for removal under 28 U.S.C. § 1446(b) and also that V&L has failed to make a showing of fraud as required by Fed. R. Civ. P. 60(b)(3) to warrant reconsideration (Doc. 27, pp. 3-4). Therefore, according to Plaintiff, the instant Motion should be denied.

V&L replies, asserting that it is proper to reconsider the remand order (Doc. 31, citing 28 U.S.C. § 1447(d); see also Lee v. State Farm Mut. Auto. Ins. Co., 360 F. Supp. 2d 825 (S.D. Miss. 2005); Elsesser v. Hosptial of the Philadelphia College of Osteopathic Med., 802 F. Supp. 1286, 1288 (E.D. Pa. 1992) (citing State of Fla. v. Simanonok, 850 F.2d 1429 (11th Cir. 1988); Smith v. Anadrill, Inc., 762 F. Supp. 1267 (S.D. Tex. 1991); Ball v. Martin Marrietta Magnesia Specialties, Inc., 130 F.R.D. 77 (W.D. Mich 1990); J.C. Bender v. Alfa Ins. Co., 754 F. Supp. 95 (S.D. Miss. 1990); Litka v. University of Detroit Dental School, 610 F. Supp. 80 (E.D. Mich. 1985)). V&L further maintains Plaintiff misrepresented to this Court the relief it sought, which should justify a reconsideration of remand, despite the fact that it is over a year since the case was remanded to state court (Doc. 31).


A. LEGAL ...

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