The opinion of the court was delivered by: Judge J. Phil Gilbert
This matter comes before the Court on plaintiff Robert Darnell's emergency motion to remand this case to the Circuit Court for the Second Judicial Circuit, Franklin County, Illinois (Doc. 5). Defendants Hoelscher, Inc. ("Hoelscher") (Doc. 6) has responded to the motion, and Darnell has replied to that response (Doc. 10).
This case arose after William Darnell, the plaintiff's decedent, died while operating the Hoelscher Model 1000 Hay Accumulator with serial number #04816 ("the Accumulator"), a piece of farm equipment designed, manufactured and distributed by defendant Hoelscher. F.B. McAfoos & Company ("McAfoos") sold the Accumulator to the decedent as an agent of the decedent's employer, WRC Farms, LLC. The plaintiff believes that, since the time it left Hoelscher's control, the Accumulator was defective because it was unreasonably dangerous in a number of specific ways. The alleged defects relate to the Accumulator's hydraulic loading mechanism. As a result of the defects, the Accumulator jammed, then moved without activation and injured the decedent, ultimately causing his death. The plaintiff also believes McAfoos was negligent in assembling the Accumulator before selling it and in failing to provide the decedent with adequate instructions about how to safely operate it.
In January 2009, the plaintiff, who is the administrator of the decedent's estate, brought a lawsuit in the Circuit Court for the Second Judicial Circuit in Franklin County, Illinois, seeking to recover from Hoelscher on a strict products liability theory. Hoelscher removed the case to federal court relying on the Court's original diversity jurisdiction, see 28 U.S.C. § 1332(a). Darnell is a citizen of Illinois, the decedent's state of citizenship prior to his death, and Hoelscher is a citizen of Kansas, so complete diversity existed. In addition, Darnell clearly claims more than $75,000, exclusive of interest and costs. Thus, the Court had original diversity jurisdiction over this case.
In September 2009, Hoelscher filed a third-party complaint against McAfoos and other parties alleging that they share in any liability to Darnell. McAfoos is a citizen of Illinois, but since it was only a third-party defendant its common citizenship with Darnell did not destroy diversity jurisdiction, and the Court had supplemental jurisdiction under 28 U.S.C. § 1367(a) to hear Hoelscher's third-party claim against McAfoos. See Abbott Labs. v. CVS Pharmacy, Inc., 290 F.3d 854, 858 (7th Cir. 2002).
On May 27, 2010, Darnell amended his complaint to allege a negligence claim directly against McAfoos. Because Darnell and McAfoos were both citizens of Illinois, the amendment destroyed diversity jurisdiction, and on August 4, 2010, the Court remanded the action to the Circuit Court for the Second Judicial Circuit, Franklin County, Illinois, pursuant to 28 U.S.C. § 1447(e).
In state court, the parties continued to litigate the matter in anticipation of an August 9, 2011, trial date. Darnell was able to settle his claim against McAfoos, and on May 27, 2011, McAfoos was dismissed from the case. Seeing that the remaining parties were completely diverse, later in the day, Hoelscher again removed the case to federal court on the basis of original diversity jurisdiction.
Darnell now asks the Court to remand the case on the grounds that the notice of removal was untimely under 28 U.S.C. § 1446(b). Hoelscher believes the time limitation Darnell cites does not apply or, in the alternative, that its notice of removal was timely even in light of that time limitation.
Generally, a defendant may remove to federal court a case filed in state court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). Removal must be accomplished within certain time limitations:
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.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from 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 jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
28 U.S.C. § 1446(b) (emphasis added). An action is commenced when it is originally filed. See Fed. R. Civ. P. 3; 735 ILCS 5/2-201(a), The one-year limitations period was intended to preclude removal late in the proceedings when substantial progress has already been made in state court. Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n. 12 (1996) ...