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Morin v. Target Corp.

August 25, 2009


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court is Plaintiff Darlene Morin's ("Morin") motion for leave to file a motion to remand [12] this case to the Circuit Court of Cook County. For the reasons stated below, Plaintiff's motion is denied.

I. Background

On December 23, 2006, Plaintiff entered one of Defendant Target Corporation's ("Target") retail stores in St. Charles, Illinois. While selecting a shopping cart, she was struck by a chain of shopping carts that was being transported into the store by a motorized cart operated by an employee of the Defendant.*fn1 On December 17, 2008 Plaintiff filed a complaint in the Circuit Court of Cook County, Illinois alleging that she was injured as a result of Defendant's negligence. Defendant then filed and served on Plaintiff's counsel a notice of removal to this Court on April 29, 2009.*fn2 Plaintiff now contends that the removal was procedurally defective because it was not timely filed, and that this case therefore should be remanded to state court.

However, because Plaintiff did not file a motion to remand within the statutorily prescribed period, she first must persuade the Court to entertain the merits of that motion. Accordingly, this motion is limited to Plaintiff's request for the Court to exercise its discretion to grant leave to file the out-of-time motion. Having carefully considered the contentions of the parties, the Court denies Plaintiff's motion for leave to file a motion to remand.

II. Analysis

In general, a defendant desiring to remove a civil action from state court must do so within thirty days after receiving a copy of the initial pleading or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. See 28 U.S.C. §§ 1446(a)-(b). However, in some circumstances, a defendant may remove after that thirty day window expires:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b).

In this case, Defendant filed its notice of removal on April 29, 2009 -- well beyond thirty days after it received a copy of the complaint. In support of its removal, Defendant stated that (i) the complaint did not allege where Plaintiff was domiciled and (ii) only after receiving an interrogatory answer revealing that Plaintiff was a citizen of Wisconsin did Defendant ascertain that complete diversity existed and that removal thus was proper.

If the exception upon which Defendant relied to remove the case after thirty days does not apply, as Plaintiff contends, then removal was untimely and a properly filed motion to remand would have been granted. At the very least, it would have been Defendant's burden to show the propriety of removal. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). But Plaintiff did not timely request remand, and the motion now before the Court constitutes the initial step in Plaintiff's belated attempt to remedy that oversight.*fn3

In general, "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Plaintiff's remand motion does not suggest that this Court lacks subject matter jurisdiction. Accordingly, Plaintiff had thirty days after Defendant filed its notice of removal in which to file a motion to remand. Pursuant to that schedule, Plaintiff's remand motion should have been filed by May 29, 2009 -- or, at the latest, June 4, 2009 -- but was not actually filed until June 12, 2009.*fn4

Plaintiff contends that even though her motion to remand was filed more than a week late, it is within the Court's discretion to consider it pursuant to Fed. R. Civ. P. 6(b)(1)(B), which states: "When an act may or must be done within a specified time, the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect." The "excusable neglect" standard is an equitable determination that must take into account all relevant circumstances surrounding the party's omission. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).*fn5 It also is a "somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. at 392. The Supreme Court approved a list of factors for courts to consider when determining whether a party's delay is a result of "excusable neglect:"

(i) the danger of prejudice to the non-moving party*fn6; (ii) the length of the delay and its potential impact on judicial proceedings; (iii) the reason for the delay; (iv) whether the delay was within the reasonable control of the movant; and (v) whether the movant acted in good faith. Id. at 395. Plaintiff maintains that with these ...

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