The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
On September 26, 1997, Plaintiffs' decedents were passengers on board an Airbus A300 aircraft, operated by P.T. Garuda Indonesia Airlines as Flight GA 152 from Jakarta to Medan, Indonesia. Defendant Hamilton Sundstrand ("Hamilton") designed, manufactured and assembled a Ground Proximity Warning System ("GPWS") that was in operation on Flight 152 at the time of the crash. Plaintiffs allege that the GPWS was defective when it left Hamilton's control and that the alleged defect was the direct and proximate cause of the crash. Plaintiffs filed this action in the Circuit Court of Cook County, Illinois. The complaint sets forth two counts: Count I is a wrongful death claim brought pursuant to 740 ILL. COMP. STAT. 180/0.01, the Illinois Wrongful Death Act, and Count II is a strict liability claim for defective design. Defendants subsequently filed a notice of removal pursuant to 28 U.S.C. §§ 1141 and 1446. Plaintiffs now move to remand the action and Defendants move to dismiss.
This is not the first time Plaintiffs have initiated an action against Hamilton. On February 19, 2008 Plaintiffs filed essentially the same complaint against Hamilton in the Circuit Court of Cook County, Illinois. On February 27, 2008, the State Court, upon Defendant's motion, consolidated the action with pending actions of the minor children of other deceased passengers. On May 22, 2008, Plaintiffs voluntarily dismissed the complaint.
On April 16, 2008, Plaintiffs also filed a similar complaint, based on the same incident, against Honeywell International Inc., which purchased the division of Hamilton responsible for the manufacture of the subject GPWS. In that action, Plaintiffs alleged Sundstrand designed, manufactured and sold the defective GPWS to Airbus sometime prior to 1993. In July 1993, the sale to Honeywell (formerly Allied Sign Co.) occurred. According to Plaintiffs, at the time of the sale, Honeywell, through its employees who were formerly employees of Sundstrand, knew of the defective and dangerous condition of the GPWS. Subsequently, Honeywell acquired additional knowledge of the defective nature of the device. Plaintiffs brought their action pursuant to the Illinois Wrongful Death Act, alleging that Honeywell negligently failed to warn of the defect. Shortly after the action was filed in federal court, Defendant removed the pending state court actions against it pursuant to Section 1441(e)(1) and 28 U.S.C. § 1369, the Multiparty, Multiforum Jurisdiction Act, which allows piggybacking of certain claims. The actions were remanded for lack of jurisdiction. On April 8, 2009, Plaintiffs voluntarily dismissed the federal suit against Honeywell.
For the following reasons, Plaintiffs' Motion to Remand is denied, and Defendant's Motion to Dismiss is denied.
A. Plaintiffs' Motion to Remand
The party seeking removal bears the burden of demonstrating the propriety of removal. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Any doubt regarding jurisdiction should be resolved in favor of the states." Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).
Plaintiffs make several arguments in favor of remand and against Defendant's removal of this action. First, Plaintiffs argue that Defendant's notice of removal is untimely under the thirty-day limitation prescribed in 28 U.S.C. § 1446(b), since the thirty-day period should commence not with service of Plaintiffs' refiled complaint, but rather with service of the original complaint. Second, Plaintiffs claim that Defendant has waived its right to removal where there was a ruling on the merits in the original action and Hamilton took discovery depositions of these particular Plaintiffs. Finally, Plaintiffs maintain that Hamilton is judicially estopped from seeking removal. I will address each argument in turn.
First, Plaintiffs argue that Defendant's notice of removal is untimely under the thirty-day limitation prescribed in 28 U.S.C. § 1446(b). Section 1446(b) states:
The notice of removal of a civil action or proceeding 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, 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.
According to Plaintiffs, the thirty-day period should commence not with service of Plaintiffs' refiled complaint, but rather with service of the original complaint. Defendant argues that Plaintiffs' refiled complaint creates a new action for purposes of removal, rendering Defendant's removal timely. The issue, then, is whether, for the purposes of Section 1446(b), the action Defendant has removed is a new action, independent of the original case against it, or a continuation of the initial action. I find that it is a new action, and that as such, Defendant's removal is not barred by the thirty-day limit.
In order to determine whether removal of this particular action is timely pursuant to § 1446(b), I must look to the date of receipt of the "copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]" "Such action" refers to this particular action - the action which is the subject of the notice of removal. The first paragraph of Section 1446(b) makes clear that the significant ...