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F.H. Paschen, Sn Nielsen & Assoc v. Edward E. Gillen

January 17, 2012

F.H. PASCHEN, SN NIELSEN & ASSOC
v.
EDWARD E. GILLEN



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court grants Plaintiffs' motion [21], and remands this case to the Circuit Court of Cook County, Illinois, and orders Defendant to pay to Plaintiffs the "just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The parties shall meet and confer on the appropriate amount of costs and fees, and if necessary, Plaintiffs shall file a fee petition consistent with the requirements of Local Rule 54.3. All other pending motions are denied as moot, without prejudice to refiling the motions in state court. All pending dates are stricken.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Before the Court is Plaintiffs' motion to remand this action to state court, and for an award of costs and fees for wrongful removal, pursuant to 28 U.S.C. § 1447(c). For the reasons discussed below, Plaintiffs' motion is granted, and all other pending motions are denied as moot without prejudice to refiling the motions in state court.

BACKGROUND

This case arises out of a contract dispute between members of a joint venture relating to a breakwater construction project. Plaintiffs Paschen Gillen Skipper Marine Joint Venture ("Joint Venture") and F.H. Paschen, SN Nielsen & Associates, LLC ("Paschen") commenced an action on January 6, 2012, in the Circuit Court of Cook County, Illinois, against Defendant Edward E. Gillen Company ("Gillen"), seeking various state law remedies. On January 10, 2012, Defendant removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1331. The parties thereafter filed cross-applications for emergency temporary restraining orders relating to the use of certain property at the construction site.

In an order dated January 11, 2012, the Court held that Defendant's notice of removal failed to invoke the diversity jurisdiction of this Court. The notice of removal alleged that (1) Defendant is "a corporation who [sic] is a citizen of Wisconsin, and has its principle place of business in Wisconsin," (2) Plaintiff Joint Venture "is an Illinois joint venture with its principle place of business located in Cook County, Chicago, Illinois," and (3) Plaintiff Paschen is "an Illinois Limited Liability Company, whose principle place of business is Illinois." (R. 1, Notice of Removal, at ¶¶ 7-9.) The Court reasoned that Defendant "failed to identify any members of either Plaintiff, nor particularizes any citizenship allegations as to these members." (R. 12, Minute Order, at 1-2 (citing, inter alia, Thomas v. Guardsmark, LLC, 487 F.3d 531, 533-34 (7th Cir. 2007).) Despite considerable doubt about whether Defendant could cure the diversity allegations, because Defendant appears to be a member of the Joint Venture, see, e.g., Ind. Gas Co., Inc. v. Home Ins. Co., 141 F.3d 314, 316 (7th Cir. 1998) ("Membership associates such as . . . joint ventures take the citizenship of each member."), the Court nonetheless granted Defendant leave to file an amended notice of removal, which Defendant did that same day. The amended notice of removal alleges subject-matter jurisdiction based on diversity of citizenship, see 28 U.S.C. § 1332, and admiralty law, see 28 U.S.C. § 1333. (R. 13.)

Courtroom Deputy KF

Initials:

DISCUSSION

On January 13, 2012, Plaintiffs filed the present motion seeking (1) an order remanding this case to state court, and (2) an award of costs and fees for wrongful removal. Defendant responded on January 17, 2012, stating that Defendant does not oppose remand because a settlement by the parties "allowed [Defendant] to remove its equipment from the jobsite," the issue which was the subject of the parties' cross-motions for a temporary restraining order. (R. 13.) Defendant, ...


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