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Isakson v. Kohl's Dep't Stores

November 23, 2010

SANDRA L. ISAKSON, PLAINTIFF,
v.
KOHL'S DEPARTMENT STORES, INC., A CORPORATION; AND JENNA BROWN, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

BACKGROUND

On September 25, 2009, Plaintiff Sandra Isakson ("Plaintiff") filed a negligence lawsuit in the Circuit Court of Cook County against Defendants Kohl's Department Stores, Inc. ("Kohl's") and Jenna Brown ("Ms. Brown"), a Kohl's employee. Kohl's was served with a copy of the complaint on October 7, 2009, and Ms. Brown was served on October 21, 2009. On September 24, 2010, Kohl's removed the case to federal court based on diversity jurisdiction, alleging that Plaintiff had fraudulently joined Ms. Brown. To support its jurisdictional argument, Kohl's alleges that Plaintiff is a resident of the State of Illinois, see R. 7, Amended Not. of Removal at ¶ 10, and that Kohl's is a Delaware corporation with its principal place of business in Wisconsin, id. at ¶ 9. Kohl's alleges that Ms. Brown, who it contends has been fraudulently joined for the purpose of defeating federal court jurisdiction, is an Illinois resident. (Id. at ¶ 6.) Kohl's further alleges that the amount in controversy exceeds $75,000. (Id. at ¶ 8.)

"It is axiomatic that a federal court must assure itself that it possesses jurisdiction over the subject matter of an action before it can proceed to take any action respecting the merits of the action." Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir. 1998). Although Plaintiff has not challenged the amended notice of removal's failure to satisfactorily plead the requirements under 28 U.S.C. § 1332(a), Kohl's -- despite having been previously instructed on this specific defect, see R. 3 -- still has not established that this Court has subject matter jurisdiction over the case. "[R]esidence and citizenship are not synonyms and it is the latter that matters for purposes of the diversity jurisdiction." Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617 (7th Cir. 2002). See also Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996) ("'[c]itizenship' for purposes of § 1332 means domicile rather than residence" and "it takes physical presence in a state, with intent to remain there, to establish domicile."). Kohl's only alleges Plaintiff's residence. Accordingly, the Court remands this case in part based on Kohl's' failure to allege subject matter jurisdiction.

Plaintiff has moved to remand this matter to the Circuit Court of Cook County on additional grounds pursuant to 28 U.S.C. § 1447(c). For the reasons below, the Court grants Plaintiff's motion and remands the case to the Circuit Court of Cook County on these additional grounds.

ANALYSIS

I. Legal Standard

A defendant may remove a case filed in state court if the federal court would have had original jurisdiction to hear the case when the plaintiff originally filed it. 28 U.S.C. § 1441(a); see also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). "The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur, 577 F.3d at 758 (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).

II. Timeliness of Notice

A defendant must file a notice of removal within thirty days of its receipt "of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b). The thirty day limitation achieves two purposes:

[T]o deprive the defendant of the undeserved tactical advantage that he would have if he could wait and see how he was faring in state court before deciding whether to remove the case to another court system; and to prevent the delay and waste of resources involved in starting a case over in a second court after significant proceedings, extending over months or even years, may have taken place in the first court.

Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n, 668 F.2d 962, 965 (7th Cir. 1982). Since Kohl's filed its notice of removal more than eleven months after it received Plaintiff's initial complaint, its notice of removal was not timely filed within the required thirty day window.

Kohl's argues that the Court should instead apply the exception to the thirty day rule, found in the second paragraph of 28 U.S.C. § 1446(b). That exception states that if the case is not initially removable, the defendant may file a notice of removal within thirty days "from [the day on] 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 [diversity of citizenship] more than 1 year after commencement of the action." 28 U.S.C. § 1446(b). Kohl's contends that this case is not "one which is or has become removable" because Ms. Brown, a non-diverse defendant, is still a party to the state court proceeding. Because of this, Kohl's argues that its removal notice is timely.*fn1

As an initial matter, the Seventh Circuit has interpreted the § 1446(b) exception narrowly. In Poulos v. Naas Foods, Inc., 959 F.2d 69, 71-2 (7th Cir. 1992), the Seventh Circuit held that for a party to utilize the exception to the thirty day rule and remove a case on the basis of diversity of citizenship beyond the thirty day window, the plaintiff must ...


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