The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
On October 12, 2005, Plaintiff Stephen D. Massey ("Plaintiff") filed his Amended Complaint against multiple defendants including Cassens & Sons, Inc. ("CS"). (Doc. 24). The Complaint alleges various causes of action stemming from injuries Plaintiff sustained on September 15, 2004, while operating a rig during his course of employment with Cassens Transport Company ("Cassens Transport"). The Complaint charges that CS "sold and placed into the stream of commerce" rigs in the Cassens Transport fleet. (Doc. 24, ¶ 5).
At this point, all named Defendants in this matter, except for CS, have been terminated by agreement or by an order of this Court. Now before the Court are three pending motions: CS's motion for summary judgment (Doc. 180); Plaintiff's motion to strike affidavit (Doc. 202); and Plaintiff's renewed motion to remand (Doc, 206). Before reviewing the motion for summary judgment (Doc. 180), the Court must begin by considering Plaintiff's renewed motion to remand. (Doc. 206.)
II. Plaintiff's Renewed Motion to Remand
On July 7, 2007, Plaintiff filed a renewed motion to remand (Doc. 206) requesting that the Court reconsider its February 16, 2006 Order (Doc. 58) denying Plaintiff's motion to remand in light of a recent Seventh Circuit opinion, Holmstrom v. Peterson, 492 F.3d 833 (7th Cir. July 3, 2007). The remand-related facts in Holmstrom are very similar to the facts in the present case. In both cases removal was predicated on diversity, an unserved defendant sought to remove the case to federal court prior to any defendant being served, and a non-diverse, unserved defendant was present. The district court judge in Holmstrom held that while the presence of an unserved resident defendant normally does not defeat removal, that fact, when coupled with the fact that the removing defendant itself had not itself been served, was sufficient to warrant remand. Holmstrom v. Harad, 2005 WL 1950672 (N.D. Ill. Aug. 11, 2005) (Aspen, J.). In the February 16, 2006 Order (Doc. 58), this Court disagreed with the district court in Holmstrom:
While an argument can be made that the likely policy underlying the "joined-and-served" requirement is not implicated by the current facts, the Court is constrained by the language of 28 U.S.C. § 1441. That language is clear and unambiguous: where complete diversity is present - as it is in this case - only the presence of a "joined-and-served" resident defendant defeats removal. 28 U.S.C. § 1441(b). Here, no such defendant was present when this case was removed. The statute contains no proviso, and, given its clarity, it is not this Court's role to insert one. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). Nor is it this Court's place to require, contrary to at least the language of 28 U.S.C. § 1446(b), that a defendant be served prior to removal. Id. Instead, this Court must be faithful to the language Congress actually employed. In this instance, that language provides no basis for remand. (Id. at 7-8.)
Plaintiff now argues that the Seventh Circuit's holding in Holmstrom somehow suggests that the district court in Holmstrom was correct to remand the case, because the Seventh Circuit found that the district court judge's application of the forum defendant rule was simply a "judicial gloss" rather than a "judicially crafted exception" to the rule. Plaintiff seems to further suggest that had the Seventh Circuit found the district court's application to be a "judicially crafted exception" that the Seventh Circuit would have had subject matter jurisdiction to review the order and that it was only because the Seventh Circuit found the district court's application to be legitimate that it was forced to refrain from reviewing the order. This Court believes that Plaintiff has read far too much into the Seventh Circuit's opinion. In fact, it seems that the Seventh Circuit was quite clear that it was refraining from reviewing the district court's remand order because "any remand order falling within the scope of § 1447(c) lies outside our jurisdiction, regardless of the correctness of the district court's reasoning." Holmstrom, 492 F.3d at 839. This is far from a ringing endorsement of the district court's approach. This Court still disagrees with the district court in Holmstrom. Therefore, Plaintiff's renewed motion to remand (Doc. 206) is DENIED.
III. Plaintiff's Motion to Strike Affidavit
Plaintiff filed a motion to strike Clarence Brown's affidavit, or in the alternative, to depose Clarence Brown. (Doc. 202.) Mr. Brown's affidavit was attached as an exhibit in support of CS's motion for summary judgment. (See Doc. 180, Ex. B.) The affidavit attached to CS's motion for summary judgment was not signed. In Plaintiff's response in opposition to CS's motion for summary judgment, Plaintiff objected to the affidavit and moved to strike it. (Doc. 195.) CS then filed a motion to substitute exhibit. (Doc. 199.) CS's motion explained that the unsigned version of Mr. Brown's affidavit had inadvertently been attached to the motion for summary judgment and requested leave to substitute the executed affidavit of Clarence Brown, which was subscribed and sworn to on February 9, 2007. The Court granted CS leave to substitute the executed affidavit. (Doc. 201.) Plaintiff then filed the present motion to strike Clarence Brown's affidavit (Doc. 202), claiming that CS had misrepresented the facts to the Court and that the affidavit was not in fact signed on February 9, 2007, but rather on April 5, 2007 - the date CS filed its motion to amend. Plaintiff argued that the executed motion should be stricken because the affidavit was not executed as of the date of the filing of the motion for summary judgment and, therefore, was a nullity. In addition, Plaintiff argues that had Mr. Brown signed the affidavit, Plaintiff "almost certainly would have chosen to depose him, but, because he did not, this was unnecessary." (Doc. 202, p. 3.) Plaintiff further posits that his response to the motion for summary judgment would have been different had Plaintiff been responding to a signed affidavit.
In response, CS explains that it had technical difficulties scanning the executed version of Mr. Brown's affidavit and finally attaches a correctly scanned version of Mr. Brown's affidavit showing that the affidavit was subscribed and sworn to on February 9, 2007. The Court understands that the date that was stamped on the earlier version of the affidavit was generated by the computer CS was using - it was not the date that the affidavit was signed. Striking this affidavit, which was signed by a notary public, would amount to the Court stating that the notary public lied and falsely dated the document. The Court refuses to do this. Therefore, the Court will not strike the substituted affidavit.
Furthermore, the Court finds Plaintiff's assertion that had the affidavit been signed, he would have deposed Mr. Brown, totally disingenuous. As CS points out, Mr. Brown submitted an affidavit in support of another Defendant's motion for summary judgment - yet Plaintiff never sought to depose him in relation to the other motion for summary judgment. It is simply hard to believe that Plaintiff did not depose Mr. Brown simply because his affidavit lacked a signature, particularly in light of the history of this and related cases against this same Defendant. For the foregoing reasons, the Court DENIES Plaintiff's motion to strike. (Doc. 202.)
IV. CS's Motion for Summary ...