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Shameka Brown v. Fifth Third Bank

September 26, 2012

SHAMEKA BROWN
v.
FIFTH THIRD BANK



Name of Assigned Judge James F. Holderman Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Pending before the court are defendant Fifth Third Bank's motion to dismiss (which was pending at the time of removal, and can be found at Dkt. No. 1, Ex. C) and plaintiff Shameka Brown's motion to remand the case to state court [13]. Those motions are under advisement. After reviewing the motions and the applicable law, the court has determined that an evidentiary hearing is necessary. That evidentiary hearing is set for 10/16/12, at 10 am. A status report is set for 10/9/12, at 9 am. The counsel who will participate in the evidentiary hearing are requested to attend the 10/9/12 status report. The parties are encouraged to discuss settlement.

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

STATEMENT

BACKGROUND

On June 29, 2011, plaintiff Shameka Brown filed a retaliatory discharge complaint in the Circuit Court of Cook County against her former employer Fifth Third Bank, alleging that Fifth Third Bank terminated her in violation of the Illinois Human Rights Act, 775 ILCS 5/2-102, and state common law. (See Dkt. No. 20, Ex. A.) Brown had been an employee at the Deerfield Banking Center Branch at 240 Skokie Blvd. in Northbrook, Illinois, which is run by Fifth Third Bank. (Dkt. No. 33 ¶ 1).

Although Fifth Third Bank asserts that Brown never properly served the summons and complaint on it, Fifth Third Bank apparently learned of the suit from some other source and filed an appearance in state court on February 6, 2012. (Id.) Thereafter, on February 13, 2012, Fifth Third Bank filed a motion to dismiss the complaint. (Dkt. No. 1., Ex. C.) The motion to dismiss contended, first, that the complaint should be dismissed for lack of diligence in service of process under Illinois Supreme Court Rule 103(b). Second, it contended that Brown filed the wrong document when she attempted to file the complaint in the state court record. According to Fifth Third Bank, the first page and the prayer for relief of the document Brown filed reference Brown's complaint against Fifth Third Bank, but the intervening six pages refer to an unrelated lawsuit that never mention Brown. (Dkt. No. 1, Ex. C., at 2.) Fifth Third Bank attached a copy of that document, which the court will refer to as the "Wrong Complaint," to its motion. (Dkt. No. 1, Ex. C, Ex. A.)

In its response to Fifth Third Bank's motion to dismiss, Brown disputed the factual premise of both of Fifth Third Bank's arguments. First, Brown attached three affidavits from its process server, Lisa Connolly, indicating that Brown served Fifth Third Bank on September 27, 2011. (Dkt. No. 1, Ex. E, Exs. B-D.) Connolly states that she first attempted to serve Fifth Third Bank at the Deerfield Banking Center Branch on July 29, 2011, but was turned away by the receptionist and told that she must serve Fifth Third Bank at its registered agent, Illinois Corporate Service Co. ("CSC"), at 801 Adlai Stevenson Drive in Springfield, Illinois. (Dkt. No. 1, Ex. E, Ex. D.) After obtaining an alias summons, she then left the alias summons with the receptionist at CSC on September 27, 2011.

Second, Fifth Third Bank attached a copy of another complaint which refers to Brown throughout (and which the court will refer to as the "Correct Complaint"), and asserted that the Correct Complaint had been served on Fifth Third Bank and was the only complaint in the state court record. (Dkt. No. 1, Ex. E, Ex. A.)

After receiving a copy of Brown's response on April 11, 2012, Fifth Third Bank asserts that it learned from the Correct Complaint that the amount in controversy exceeded $75,0000. (Dkt. No. 1 ¶¶ 6-7.) Because Fifth Third Bank is an Ohio corporation and Brown is a citizen of Illinois, Fifth Third Bank then removed the case to federal court on the basis of diversity of citizenship on April 23, 2012. (Dkt. No. 1.) While in federal court, the parties completed the briefing on Fifth Third's motion to dismiss. (See Dkt. Nos. 8, 23, 29.) In addition, on May 23, 2012, Brown filed a motion to remand the case to state court on the procedural ground that Fifth Third Bank removed the case outside of the 30-day time limit allowed by 28 U.S.C. § 1446(b).

Both Fifth Third's motion to dismiss and Brown's motion to remand are currently pending before the court. Although the parties have not briefed Brown's motion to remand, its disposition turns on the same factual questions that have been extensively briefed in relation to the motion to dismiss. Both motions are therefore ripe for decision, except that factual issues exist that can only be resolved through an evidentiary hearing.

ANALYSIS

Under federal law, a defendant in state court may remove a case to federal court only if it files the notice of removal in federal court "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth ...


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