Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kevin Kehrer v. Larry York and Leonard's Express

June 29, 2011

KEVIN KEHRER, PLAINTIFF,
v.
LARRY YORK AND LEONARD'S EXPRESS, INC., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge:

MEMORANDUM & ORDER

Before the Court is plaintiff's motion to remand (Doc. 7), to which defendants have filed a response (Doc. 11).

BACKGROUND

Plaintiff originally filed this action against defendants in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois (Case. No. 10-L-944). Plaintiff alleges that on or about August 8, 2009, while operating a motorcycle, he was struck and injured by defendant Larry York ("York"), who was operating an International brand tractor trailer truck on Highway 70 in Illinois, in the course and scope of his employment with defendant Leonard's Express, Inc. ("Leonard's"). Plaintiff claims that defendant York breached his duty to keep a lookout for traffic when he struck plaintiff, and because York was acting in the course and scope of his employment, Leonard's is liable for the negligence of its employee. Plaintiff alleges that he was severely injured, incurring substantial damage to his head and other parts of his body, requiring substantial past and future medical care, incurring past and future lost wages, past and future pain and suffering, and other damages allowed under Illinois law.

Defendants removed this action based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a). Defendants state that complete diversity of citizenship exists between the parties in this action. Specifically, (1) plaintiff is a citizen of Madison County, Illinois; (2) defendant Leonard's, is a New York citizen and corporation with its principal place of business in Farmington, New York; and (3) defendant York is a citizen of New York. Defendants also state that based on the pleadings and the information that plaintiff was airlifted from the scene of the accident, the amount in controversy exceeds $75,000.

Plaintiff moves for remand, arguing that defendants' notice of removal failed to meet the procedural requirements of 28 U.S.C. § 1446. Specifically, plaintiff asserts that: (1) the actual process served upon defendants is not attached to the Notice of Removal (defendant attached unserved courtesy copies which do not evidence actual service); (2) defendants did not attach the Affidavit of Compliance for Service on a Non-Resident, which was served upon defendant York; (3) defendants provided nothing to indicate that notice was given to the state court as statutorily required; and (4) defendants provided nothing to establish when service took place in order to prove timeliness of removal. Defendants' response indicates that a notice of removal was properly filed in state court, and that the documents filed with this Court along with defendants' notice of removal prove when service was effected upon defendants and that removal was timely.

LEGAL STANDARD

Removal based on federal diversity jurisdiction requires that the parties be of diverse citizenship and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1).

Plaintiff does not dispute either element of diversity jurisdiction, but plaintiff asserts that the proper removal procedural requirements were not followed. In light of the undisputed facts regarding diversity jurisdiction, the Court FINDS that this suit meets both the diversity of citizenship and amount in controversy requirements, and this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).

Beyond jurisdictional issues, certain procedural requirements must be met for proper removal of a case from state to federal court. Specifically, under 28 U.S.C. § 1446(a), defendants seeking removal must file in the district court a notice of removal that contains "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such . . . defendants in such action." Further, under 28 U.S.C. § 1446(b): [t]he notice of removal of a civil action . . . 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.

Additionally, 28 U.S.C. § 1446(d) provides:

[p]romptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

The burden of demonstrating proper removal rests with the party seeking to invoke federal jurisdiction. Boyd v. Phoenix Funding Corp., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.