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Jones v. Chiarella

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


June 22, 2010

ASHLEY JONES, PLAINTIFF,
v.
DAN CHIARELLA, MEARL JUSTUS, IN HIS CAPACITY AS SHERIFF OF ST. CLAIR COUNTY, ILLINOIS, AND ST. CLAIR COUNTY, ILLINOIS, DEFENDANTS.

The opinion of the court was delivered by: G. Patrick Murphy United States District Judge

MEMORANDUM AND ORDER

MURPHY, District Judge

This matter is before the Court on the motion to join in removal brought by Defendant Dan Chiarella (Doc. 9). The procedural history of this case relevant to the instant motion is as follows. On May 18, 2010, this case was filed in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois. The same day service was effected on Defendants Mearl Justus and St. Clair County, Illinois ("the County"), via the St. Clair County state's attorney. On June 9, 2010, Justus and the County removed this case from state court to this Court, asserting the existence of federal subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1331. On June 11, 2010, the Court noted a defect in the removal procedure, namely, that Defendant Chiarella apparently had been served when this case was removed but had not consented to or otherwise joined in the removal. See Jones v. Chiarella, Civil No. 10-421-GPM, 2010 WL 2367382, at *1 (S.D. Ill. June 11, 2010). Accordingly, the Court directed Plaintiff Ashley Jones to file not later than Wednesday, June 16, 2010, at 12:00 noon either (1) a motion for remand of this case to the St. Clair County Circuit Court pursuant to 28 U.S.C. § 1447(c) by reason of Chiarella's failure to consent to or otherwise join in the removal of this case or (2) a written consent to the removal of the case. See id. at **2-3. On June 15, 2010, Chiarella filed the instant motion to join in the removal of this case, acknowledging that in fact he had been served when this case was removed but asking leave to join in the removal. On June 16, 2010, Plaintiff Jones filed a response to the Court's June 11 order stating that she does not believe that she has grounds to seek remand of this case to state court.

Inasmuch as Chiarella now has manifested his consent to the removal of this case within thirty days of the date the case became removable -- that is, May 18, when Chiarella, Justus, and the County were served with the complaint in this case -- any procedural defect in the removal of this case by reason of Chiarella's failure to consent to or otherwise join in the removal has been cured. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 368 (7th Cir. 1993) (citing 28 U.S.C. § 1446(b)) (a removal of a case is not procedurally defective if within the time for removal of the case a defendant whose consent to removal is required, but has not previously been given, consents to or otherwise joins in the removal); Northern Illinois Gas v. Airco Indus. Gases, Div. of Airco, Inc., 676 F.2d 270, 272-73 (7th Cir. 1982) (same); Dennison v. Shell Oil Co., Civil No. 07-802-GPM, 2007 WL 4390346, at *1 (S.D. Ill. Dec. 14, 2007) (same); Production Stamping Corp. v. Maryland Cas. Co., 829 F. Supp. 1074, 1076 (E.D. Wis. 1993) (same); Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1447 (N.D. Ill. 1987) (same); Hardesty v. General Foods Corp., 608 F. Supp. 992, 993 (N.D. Ill. 1985) (same). Additionally, Jones has waived any objection to removal based on Chiarella's failure to consent to or otherwise join in the removal of this case and therefore the case will stay in federal court. See In re Continental Cas. Co., 29 F.3d 292, 293-95 (7th Cir. 1994) (citing 28 U.S.C. § 1447(c)) (a court cannot remand a case based on a procedural defect in removal of the case to which a plaintiff has not raised a timely objection); Dudley v. Putnam Inv. Funds, Civil No. 10-327-GPM, 2010 WL 1756882, at *4 (S.D. Ill. May 3, 2010) (same); Locklear Elec. v. My Overhead Corp., Civil No. 07-788-GPM, 2007 WL 4225732, at *5 (S.D. Ill. Nov. 26, 2007) (same); Pruitt v. Kelly Moore Paint Co., Civil No. 07-768-GPM, 2007 WL 4225654, at *3 (S.D. Ill. Nov. 13, 2007) (same); Yount v. Shashek, 472 F. Supp. 2d 1055, 1058 (S.D. Ill. 2006) (same); Fields v. Jay Henges Enters., Inc., Civil No. 06-323-GPM, 2006 WL 1875457, at *2 (S.D. Ill. June 30, 2006) (same). Accordingly, Chiarella's motion to join in the removal of this case (Doc. 9) is GRANTED, and the Court FINDS that this case has been properly removed to this Court.

IT IS SO ORDERED.

20100622

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