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Brandt v. Turbine Engine Specialists

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 15, 2008

KEVIN A. BRANDT, PLAINTIFF,
v.
TURBINE ENGINE SPECIALISTS, INC. AND MOE HATAMI, DEFENDANTS

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

ORDER

On December 4, 2007, Plaintiff filed a Complaint against Defendants in the Circuit Court of Madison County, Illinois. On December 12, 2007, copies of the Complaint, along with summonses, were personally served upon Defendants. On January 11, 2008, Defendants paid a filing fee and opened a case in this Court. (Doc. 1.) On January 17, 2008, Defendants filed a Notice of Removal in this case. (Doc. 3.) Now before the Court is Plaintiff's motion to remand, or in the alternative, to strike Defendants' Rule 12 motions. (Doc. 20.) Plaintiff's motion argues that Defendants' Notice of Removal was untimely and, therefore, this matter should be remanded. As of this date, Defendants have not filed a response to the motion. The time to file a response has expired. Pursuant to LOCAL RULE 7.1(c), the Court considers this failure to respond an admission of the merits of the motion.*fn1

A defendant may remove a case only if a federal district court would have original jurisdiction over the action. See 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).*fn2 Statutes providing for removal are construed narrowly, and doubts about removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The burden of establishing jurisdiction in the federal courts falls on the party seeking removal. Doe v. Allied Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).

In removing an action a defendant must also comply with the procedures outlined in 28 U.S.C. § 1446. In particular, the notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . ." 28 U.S.C. § 1446(b).

It is undisputed that Defendants were served a copy of the Complaint and summonses on December 12, 2007. Under 28 U.S.C. § 1446(b), Defendants had until January 11, 2008 to file their Notice of Removal. Although Defendants opened a case with this Court on January 11, 2008, they did not actually file their Notice of Removal until January 17, 2008 -- six days after the time allowed for removal under 28 U.S.C. § 1446(b). Defendants' Notice of Removal was untimely and Defendants. Therefore, the Court GRANTS Plaintiff's motion to remand (Doc. 21) and REMANDS this matter to the Circuit Court of Madison County, Illinois. Further, the Court DIRECTS the Clerk of the Court to transmit the complete file to the Clerk of the Madison County Circuit Court no sooner than April 25, 2008 and thereafter to close this Court's file.

IT IS SO ORDERED.

David R Herndon Chief Judge United States District Court


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