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Cullen v. Home Depot U.S.A.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


December 17, 2007

CHERYL CULLEN, PLAINTIFF,
v.
HOME DEPOT U.S.A., INC., DEFENDANT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

This Court has just received a Notice of Removal ("Notice") filed by defendant Home Depot U.S.A., Inc. ("Home Depot"), which seeks to invoke federal jurisdiction on diversity of citizenship grounds. This memorandum order is issued sua sponte because of a problematic aspect of such removal.

What is questionable here is not the existence of the requisite amount in controversy or of the required diversity of citizenship, but rather what appears to be the untimeliness of the removal under the second paragraph of 28 U.S.C. §1446(b) ("Section 1446(b)"). Here is Notice ¶7:

This Notice of Removal is timely filed within thirty (30) days after notice that the amount in controversy will exceed Seventy Five Thousand Dollars ($75,000.00).

But in that respect Home Depot's counsel refers to the Notice as having been tendered pursuant to "Local Rule 81.2," even though LR 81.2 was withdrawn over 2-1/2 years ago (on April 25, 2005) and is no longer in effect--and more importantly, Home Depot acknowledges that it was apprised of the over-$75,000 amount in controversy on November 9, 2007 (Notice ¶4), yet did not file the Notice until 34 days later (on December 13, 2007), outside of the 30-day limit established by Section 1446(b).

Because untimeliness of a removal is not a jurisdictional flaw, a sua sponte remand to the Circuit Court of Cook County would be inappropriate. Instead this Court orders counsel for both parties to appear at a status hearing at 9 a.m. December 26, 2007 to discuss whether this action will go forward in this District Court or in its state court of origin.

20071217

© 1992-2007 VersusLaw Inc.



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