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Dallas National Insurance Co v. Entertainment Media Specialists

May 3, 2011

DALLAS NATIONAL INSURANCE CO., PLAINTIFF,
v.
ENTERTAINMENT MEDIA SPECIALISTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Defendant, Gabriella Cedillo, was working on the set of the movie Transformers 3 when she was severely injured. The instant actionwas filed by Plaintiff, an insurance company, claiming that Defendants have no coverage under its policy. Defendant Entertainment Media Specialists ("EMS") properly removed this action, but now, later-served Defendant Gabriella Cedillo ("Cedillo") seeks remand based on the "forum defendant" rule and the "consent-to-removal rule." For the following reasons, Cedillo's motion to remand is denied.

II. STATEMENT OF FACTS

Cedillo was an extra on the filming set of the Transformers 3 movie. She suffered severe injuries when the welding on a bracket broke loose on a stunt car being towed in the opposing lane of travel and struck her in the head, leaving her with significant brain damage. Adolofo Romo was appointed as guardian of the Estate of Gabriella Cedillo, and filed a complaint in the Circuit Court of Cook County, Illinois. That case was removed to the Northern District of Illinois, and is currently pending before Judge Guzman. Cedillo also filed an Application for Adjustment Claim with the Illinois Workers' Compensation Commission alleging that while in the employ of EMS she was severely and permanently injured. Dallas National sought declaratory relief involving the construction of its insurance contact with EMS, which Cedillo claimed an interest.

Plaintiff Dallas National originally filed this action in the Circuit Court of Cook County, Illinois and named both EMS and Cedillo as Defendants. Dallas National served EMS on November 23, 2010, and on November 30, 2010, EMS removed this case. Cedillo was served on March 4, 2011. On March 10, 2011, Cedillo filed her motion to remand. Both EMS and Dallas National oppose Cedillo's motion for remand.

EMS also filed its own lawsuit against Dallas National in the United States District Court for the Central District of California. Because there were two competing lawsuits raising many of the same issues, EMS filed a motion to stay this action in favor of the California Action. Dallas National filed a similar motion to dismiss or transfer the California action to this Court. On March 14, 2011, the California court granted Dallas National's motion and transferred the California Action to the Northern District of Illinois.

III. DISCUSSION

Cedillo advocates for remand because removal violates the "forum-defendant rule," 28 U.S.C. § 1441(b), and the consent-to-remove rule, 28 U.S.C. § 1441(a) . In accordance with § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed" by a defendant. Pursuant to the forum-defendant rule, an action is removable based on diversity of citizenship jurisdiction "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such an action is brought." 28 U.S.C. § 1441(b). A defendant that is a citizen of such a state may file a motion for remand within 30 days after the filing of the notice of removal, pursuant to § 1446(a). 28 U.S.C. § 1447( c). Recognizing that her motion for remand is not within the 30-day proscribed period, Cedillo cites to 28 U.S.C. § 1448 which states that a defendant who has not been served with process after the removal of a case from a state court to a district court will not be deprived of his right to remand the case. Accordingly, the issue here is whether a later-served defendant may assert her right to remand, where she was served after the 30-day period proscribed by § 1447(c) has expired.

Defendant EMS and Plaintiff Dallas National Insurance Co.,*fn1 oppose Cedillo's motion as among other things, untimely. Pursuant to 28 U.S.C. § 1447( c), "[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)." Cedillo asserts that both the "forum defendant" rule and consent-to-removal rule are grounds for granting her motion for remand. Cedillo filed her motion for remand six days after being served, but well after 30 days of the notice of removal being filed. There is no clear answer to the question now before me, with courts taking two distinct approaches. Each approach attempts to balance competing interests, yet yields differing results. One approach, advocated by Cedillo, would start the 30-day clock anew for each defendant served. Under this theory, Cedillo's motion for remand is certainly timely. Conversely, a second theory begins counting down the 30-day period once the first defendant has been served. In accordance with this theory, Cedillo's motion to remand is untimely.

A. The Local-Defendant Rule Is Procedural, Not Jurisdictional.

Plaintiff first argues that the local-defendant rule is procedural rather than jurisdictional. Accordingly, because Cedillo's motion for remand was not filed within 30 days of the notice of removal, she has waived her right to assert this rule. In support of this argument, Plaintiff cites to Hurley v. Motor Coach Industries, Inc., 222 F.3d 377 (7th Cir. 2000). In Hurley, the plaintiff failed to seek remand after the defendants had filed their notice of removal, where one later-added defendant, Pines, was a forum defendant. The Seventh Circuit held that the forum defendant rule is procedural, and therefore waiveable. Hurley, 222 F.3d at 380. Accordingly, once Pines was added to the case, the plaintiff had 30 days to object to removal. Similarly, here EMS could have chosen to return to state court, but chose not to, therefore waiving its right to remand based on the forum defendant rule. Though addressing the impact on a plaintiff who fails to seek remand, Hurley, does not address the question of whether a later-served defendant may restart the 30-day clock, a question relevant to this motion. Therefore, while Hurley, does instruct that the forum-defendant rule is procedural and therefore waivable, it does not assist in determining whether Cedillo's motion for remand is timely or has been waived.

B. Cedillo's Motion For Remand Is Untimely.

The question at issue in this motion asks when the 30-day limitation period of § 1447 is triggered. Cedillo argues that the statute will not be triggered for any given defendant until that defendant is served. This principle, argues Cedillo, is set forth in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999), where the Court stated that "[a]n individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process." Id. at 347-48. It would follow, then, that Cedillo's 30-day limitation period for remand may only be triggered once the ...


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