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Save-A-Life Foundation, Inc. v. Heimlich

February 3, 2009; as amended February 9, 2009

SAVE-A-LIFE FOUNDATION, INC., PLAINTIFF,
v.
PETER HEIMLICH, JASON HAAP, & ROBERT BARATZ, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Save-A-Life Foundation, Inc. (SAL) filed suit against Peter Heimlich, Jason Haap, and Robert Baratz in the Circuit Court of Cook County, alleging various claims under Illinois law. Heimlich removed the case to this Court on the basis of diversity jurisdiction. SAL asks the Court to remand the case to the Circuit Court of Cook County. For the following reasons, the Court denies SAL's motion.

Facts

SAL filed the original complaint in this case in the Circuit Court of Cook County on May 3, 2007. SAL is a citizen of Illinois. The original and current defendants, Heimlich, Haap, and Baratz, are each citizens of states other than Illinois. Haap and Baratz appeared while the case was pending in state court. SAL filed an amended complaint before serving Heimlich with the summons and original complaint. SAL subsequently filed a second amended complaint, again before serving Heimlich.

Following a number of unsuccessful attempts by SAL to serve Heimlich with the second amended complaint, the Circuit Court of Cook County granted SAL leave to serve Heimlich by alternate means pursuant to 735 ILCS 5/2-203.1. The alternate means that the court approved included: (1) posting the summons and complaint at Heimlich's residence by the Gwinnett County, Georgia, Sheriff; (2) mailing the summons and complaint to Heimlich's home address; and (3) e-mailing the summons and complaint to Heimlich at a particular e-mail address. The Gwinnett County Sheriff served Heimlich with the summons and complaint on September 22, 2008. Heimlich has also stated, in a sworn declaration, that he received copies of the summons and complaint via U.S. Mail on September 23, 2008. Heimlich denies receiving the summons prior to September 22, 2008 and specifically denies ever receiving the summons by e-mail.

Heimlich filed a notice of removal on October 21, 2008. There is no dispute regarding Heimlich's contentions that complete diversity of citizenship exists and that the amount in controversy, exclusive of interest and costs, exceeds $75,000. SAL has, however, moved to remand the action to the Circuit Court of Cook County, claiming that Heimlich's removal is defective for a number of reasons.

Discussion

"As the party seeking to invoke federal jurisdiction, [Heimlich] bears the burden of demonstrating that removal is proper." Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).

1. Removal by a Later-Served Defendant

A defendant has thirty days following service to remove an action from state to federal court. 28 U.S.C. § 1446(b). When a complaint "is filed in court prior to any service, the removal period runs from the service of the summons." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-56 (1999). If the suit names multiple defendants, it may not be removed unless all the defendants consent to removal. E.g., McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir. 1998).*fn1 Courts refer to this as the unanimity requirement.

Section 1446 does not address whether a later-served defendant can obtain consent for removal from a defendant who was served earlier and for whom the time to remove has already expired. See 28 U.S.C. § 1446(b); Boyd, 366 F.3d at 529-30. Neither the Supreme Court nor the Seventh Circuit has addressed this issue. Some courts, however, have adopted what has become known as the "first-served defendant" rule. E.g., Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986); Phoenix Container, L.P. ex rel. Samarah v. Sokoloff, 83 F. Supp. 2d 928, 932 (N.D. Ill. 2000). Under that rule, which ostensibly furthers the unanimity requirement, an action may be removed only during the thirty days following service of the first defendant. In the event another defendant is served at a later date after the first-served defendant's thirty-day window to remove has expired, the later-served defendant is bound by the first defendant's failure to timely remove the case to federal court. Brown, 792 F.2d at 481-82. SAL contends that the first-served defendant rule bars Heimlich from removing this action to federal court. It is undisputed that the time for Haap and Baratz to remove this case expired long before Heimlich was served in September 2008.

Recently, however, the Sixth, Eighth, and Eleventh Circuits have rejected the first-served defendant rule. Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1205-08 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 754-57 (8th Cir. 2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 532-33 & n.3 (6th Cir. 1999). Each of these courts provided compelling reasons for reaching this conclusion. First, they reasoned that a rule allowing each defendant the opportunity to remove an action, regardless of when other defendants had been served, was more equitable. Bailey, 536 F.3d at 1206-07; Marano Enters. of Kan., 254 F.3d at 755. They also noted that rejection of the first-served defendant rule was consistent with the plain language of 28 U.S.C. § 1446(b). Bailey, 536 F.3d at 1207; Brierly, 184 F.3d at 533.

The Eleventh Circuit examined the two goals often provided by courts to justify the first-served defendant rule: the requirement of unanimity to remove a case from state to federal court, and the principle that federal court jurisdiction and the removal statute are to be construed narrowly. Bailey, 536 F.3d at 1207. With respect to the first goal, the Eleventh Circuit stated:

The last-served rule is not inconsistent with the rule of unanimity. Earlier-served defendants may choose to join in a later-served defendant's motion or not, therefore preserving the rule that a notice of removal must have the unanimous consent of the defendants. The unanimity rule alone does not command that a first-served defendant's failure ...


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