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Terry C. Johnson v. James Hankins

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION


September 22, 2011

TERRY C. JOHNSON, PLAINTIFF,
v.
JAMES HANKINS, SHARLENE CARAWAY, JOSEPH PROCTOR, AND SHAN JUMPER, DEFENDANTS.

The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Thursday, 22 September, 2011 11:04:12 AM Clerk, U.S. District Court, ILCD

OPINION

All of the defendants filed a notice of removal in this case except for Defendant Hankins. Though he did not consent to removal, Hankins initially did not file any objections to removal in this court. The rest of the defendants maintain it is necessary for Hankins not only to refuse to consent but also to file an objection in this Court within 30 days of the filing of the notice of removal.

The cases cited by the defendants do not support this conclusion. In Pettitt v. Boeing Co., 606 F.3d 340 (7th Cir. 2010), the Seventh Circuit held that removal did not require the unanimous consent of the defendants because removal of that case was brought under the Multiforum Trial Jurisdiction Act, 28 U.S.C. § 1369, which falls under 28 U.S.C. § 1441(e)(1)(A) removal, not general federal question jurisdiction, which falls under 28 U.S.C. § 1441(a) removal. The Court confirmed in Pettitt that removal under § 1441(a) "generally requires the unanimous consent of all defendants". 606 F.3d at 343. This is not a case falling under the Multiforum Trial Jurisdiction Act.

Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) is also distinguishable because in that case all of the defendants implicitly consented to removal by litigating the case in federal court after removal. The lack of formal consent was an oversight by the court and the parties. Here, Defendant Hankins does not consent to removal. See Schmude v. Sheahan, 198 F.Supp.2d 964 (N.D. Ill. 2002)("[P]rior to removal, if a served defendant objects, it can refuse to join a co-defendant's removal petition, thereby preventing removal.").*fn1 In any event, even if Hankins needed to take additional action, he has now filed his "non-consent to removal" in this Court, mooting the other defendants' argument. Accordingly, this case will be remanded to state court.

IT IS THEREFORE ORDERED that this case is remanded to the Circuit

Court for the Eighth Judicial Circuit of Illinois, Schuyler County, case number 11-L-4. All pending motions are denied as moot (d/e's 5, 8), and this case is closed. ENTERED: 9/22/2011 FOR THE COURT:

SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE


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