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Street v. Cottrell

March 3, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on the motion to remand filed by plaintiffs John Street and Jackie Street (collectively, "the Streets") (Doc. 16). Defendant Cottrell, Inc. has responded to the motion (Doc. 29), and the Streets have replied to that response (Doc. 34).

I. Background

The Streets originally filed this case in the Circuit Court for the Third Judicial Circuit in Madison County, Illinois. They allege that, as an employee of Jack Cooper Transport Company ("Jack Cooper"), John Street was injured on three occasions -- (1) while using a chain and ratchet tie-down system, (2) while pulling out the skids on a trailer and (3) while tightening a chain on a ramp on a trailer. The trailer was a car-hauling trailer designed and manufactured by defendant Cottrell. The Streets allege that each of the defendants is liable for their injuries under theories of products liability, negligence, breach of warranty or spoliation of evidence. Jackie Street brings a claim for loss of consortium. Their sole claim against defendant Roger Owens, one of John Street's co-workers at Jack Cooper, is for spoliation of evidence because Owens ordered that the trailer involved in Street's chain and rachet tie-down injury be refurbished.

Cottrell believes the Streets, citizens of Illinois, are completely diverse from itself, a citizen of Georgia, and defendant Auto Handling Corporation, a citizen of Delaware and Missouri, and that Owens, a citizen of Illinois, must be disregarded for the purpose of determining diversity because he is fraudulently joined. In light of the fact that more than $75,000 is in issue, exclusive of interest and costs, Cottrell removed this case to federal court under 28 U.S.C. § 1441(a), relying on the Court's original diversity jurisdiction under 28 U.S.C. § 1332(a).

The Streets now ask the Court to remand this case for lack of subject matter jurisdiction because there is not complete diversity between the plaintiffs and defendants as required by 28 U.S.C. § 1332(a). Alternatively, the Streets asks for remand in light of the forum defendant rule, which allows removal of diversity actions "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). The Streets filed their motion for remand 35 days after Cottrell filed its notice of removal.

In response, Cottrell argues that the fraudulent joinder doctrine permits the Court to disregard Owens' citizenship. Cottrell further argues the Streets have waived their forum defendant rule argument by failing to file their motion to remand within 30 days of the notice of removal as required by 28 U.S.C. § 1447(c).

II. Analysis

A. Pleadings and Burdens

Before reaching the substantive issues, a word is in order about the pleading requirements and the burden of proof applicable to the pending motion to remand. The Streets incorrectly assert that Cottrell's notice of removal is deficient because it does not contain sufficient evidence to show fraudulent joinder. There is no requirement that a notice of removal attach evidence. On the contrary, the notice of removal need only "contain[] a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). This language mirrors the pleading standard set forth in Federal Rule of Civil Procedure 8(a), and courts accordingly apply the same liberal notice pleading standard to notices of removal. See Charter Sch. of Pine Grove, Inc. v. St. Helena Parish Sch. Bd., 417 F.3d 444, 447 (5th Cir. 2005) ("notice of removal was sufficient . . . if it provided the district court with facts from which removal jurisdiction . . . could be determined"). Under that standard, so long as the Court is provided with factual allegations from which removal jurisdiction can be determined, the notice is sufficient. 14C Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, § 3733 (3d ed. 2006). Cottrell's notice of removal provides sufficient factual allegations to determine federal subject matter jurisdiction.

For its part, Cottrell erroneously believes that all of the assertions of the notice of removal must be taken as true if they are not contradicted in the plaintiff's motion to remand. It may be true that the notice of removal's factual allegations to support jurisdiction will be accepted as true if they are not challenged by a motion to remand. See, e.g., Lewis v. AT & T Corp., 898 F. Supp. 907, 909 (S.D. Fla. 1995). However, this rule applies only to factual allegations such as, for example, allegations of a party's citizenship or of the amount in controversy. See, e.g., id. The general rule does not apply to legal conclusions like the assertion that a defendant was fraudulently joined. The burden of proving a defendant is fraudulently joined rests at all times with the defendant, as the proponent of federal jurisdiction, regardless of whether the plaintiff puts forth evidence challenging the fraudulent joinder assertion. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992)

The Court now turns to the question of subject matter jurisdiction. It declines to address the question of whether the removal was procedurally deficient under the forum defendant rule.

Failure to observe the forum defendant rule is a procedural defect, Holmstrom v. Peterson, 492 F.3d 833, 838 (7th Cir. 2007), and the Streets have waived objection to procedural defects by failing to move for remand within 30 days of when Cottrell filed the notice of removal. See 28 U.S.C. ยง 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter ...

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