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Mb Financial, N.A., As Guardian of the Estate of Cristina Zvunca, A Minor v. Jeanine L. Stevens

April 24, 2012

MB FINANCIAL, N.A., AS GUARDIAN OF THE ESTATE OF CRISTINA ZVUNCA, A MINOR, PLAINTIFF,
v.
JEANINE L. STEVENS, ET AL., DEFENDANTS-APPELLEES. APPEAL OF: DAVID A. NOVOSELSKY



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 798--Harry D. Leinenweber, Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

ARGUED APRIL 12, 2012

Before EASTERBROOK, Chief Judge, and MANION and SYKES, Circuit Judges.

Attorney David Novoselsky, purporting to represent MB Financial as guardian of Cristina Zvunca's financial interests, filed suit in a state court against six defendants. This suit alleged, among other things, that several of the defendants had abused Zvunca. It had multiple problems, including the fact that Tiberiu Klein, Zvunca's general guardian (she is a minor), had discharged Novoselsky as Zvunca's lawyer. When defendants pointed out the suit's shortcomings, Novoselsky dismissed the complaint--but the defendants, who had been defamed and put to the expense of pro- curing dismissal, sought an award of sanctions against Novoselsky under Illinois Supreme Court Rule 137.

Before the state court ruled on this motion, Klein filed a motion to intervene for the purpose of requesting sanc- tions on Zvunca's behalf. And before the state court could rule on Klein's motion, Novoselsky filed a notice of removal to federal court under 28 U.S.C. §1441. (Our references throughout this opinion are to the laws in force in spring 2011, when the suit was removed. The Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. 112-63, 125 Stat. 758 (2011), amended 28 U.S.C. §§ 1332, 1441, 1446, and several other statutes. The President signed the 2011 Act on December 7, 2011. It went into force on January 6, 2012, and the juris- dictional changes apply only to suits begun on or after that date. See §105 of the 2011 Act, 28 U.S.C. §1332 note.)

Within a month, and notwithstanding what the district judge called a "deluge of motions" from Novoselsky, the federal court remanded the proceeding to state court. The put-upon litigants asked for an award of attorneys' fees for wrongful removal. See 28 U.S.C. §1447(c). The district judge concluded that such an award is appropriate and that Novoselsky also had vexa- tiously multiplied the proceedings, allowing an award under 28 U.S.C. §1927. See 2011 U.S. Dist. LEXIS 71803 (N.D. Ill. July 5, 2011). The court ordered Novoselsky to pay $10,155 to one of the defendants and $2,432 to another. Novoselsky has appealed. The order must be affirmed if either §1447(c) or §1927 supports it; we discuss only §1447(c).

Section 1447(c) authorizes an award of attorneys' fees when the removal was unreasonable. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). Novoselsky's removal was worse than unreasonable; it was preposterous. Here is a partial list of the problems:

* Only a party can remove a suit to federal court. 28 U.S.C. §1441(a), (b). A request for sanctions does not convert a lawyer into a party. (Nor, as a matter of Illinois law, does a motion under Rule 137 create a new suit with the lawyer as defendant. See Cook County v. Triangle Sign Co., 40 Ill. App. 2d 202, 216 (1963). That's why Novoselsky removed MB Financial v. Stevens, the suit he originally filed, rather than attempting to remove "Klein v. Novoselsky" as a separate juridical unit.)
* Among parties, only a defendant can remove the suit. 28 U.S.C. §1441(a), (b). Novoselsky is not a defendant; he was counsel on the plain- tiff's side. Like Klein, Novoselsky might have moved to intervene, but he didn't.
* Removal requires the consent of all defendants. See Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245 (1900). (This requirement has been codified by §103(b) of the 2011 Act, amending 28 U.S.C. §1446(a)(2)(B).) The state suit has six defendants, none of whom consented to removal. So even if Novoselsky were treated as a seventh defendant, removal would be impossible.

* When federal jurisdiction depends on di- versity of citizenship, the suit "shall be re- movable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. §1441(b). Section 103(a) of the 2011 Act makes this language even stronger. All six defendants in the state suit are citizens of Illinois, the state in which the action was brought--so again treating Novoselsky as a party would not have allowed removal, even had all of the orig- inal six defendants consented (which they didn't).

* A notice of removal must be filed within 30 days of a suit's commencement. 28 U.S.C. §1446(b). Novoselsky's notice was filed long after that.

Novoselsky has slighted all of these problems except the last--the 30-day rule. He invokes the proviso in §1446(b) that a new 30-day window opens, "[i]f the case stated by the initial pleading is not removable", on "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". Ac- cording to Novoselsky, Klein's motion for leave to inter- vene brought the suit within the diversity jurisdic- tion because Zvunca is a citizen of Romania, while Novoselsky is a citizen of Wisconsin. There are multiple problems with this theme.

First, a motion to intervene does not create diversity of citizenship. Perhaps a grant of that motion could have done so, had it produced a Romanian plaintiff and a Wisconsin defendant. But a motion proposing to become a party did not make Klein a party. Novoselsky needed to wait for the state court's decision on Klein's motion. That decision would have ...


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