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Peter K. Trzyna v. Sandra Giuffre

November 2, 2012

PETER K. TRZYNA, PLAINTIFF,
v.
SANDRA GIUFFRE, DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Peter K. Trzyna ("Trzyna") filed in the Circuit Court of Cook County a third-amended complaint against defendant Sandra Giuffre ("Giuffre"). Within thirty days thereafter, Giuffre removed the case to this court. Trzyna now moves to remand. For the reasons set forth below, the Court grants plaintiff's motion to remand.

I. Background

In the summer of 2010, Trzyna, who is an attorney, filed two suits in the Circuit Court of Cook County to recover unpaid legal fees. On June 24, 2010, Trzyna filed the first suit against Giuffre for legal fees Trzyna alleges that Giuffre incurred personally. Soon thereafter, Trzyna filed a second suit against Richard Nichol ("Nichol") for legal fees incurred by a dissolved entity called Giuffre Associates, LLC. The parties agree that Richard Nichol had signed on behalf of Giuffre Associates, LLC the engagement letter between Trzyna and Giuffre Associates, LLC. The parties also seem to agree that Giuffre and Nichol were both members of Giuffre Associates, LLC.

In one suit, Trzyna sought unpaid legal fees in the amount of $51,751.58, and, in the other, he sought $23,556.12. Thus, between the two suits, Trzyna claimed $75,307.70 in unpaid legal fees.

In state court, the parties marched through motion practice and discovery for nearly two years. Trzyna states that on May 23, 2012 (nearly two years after Trzyna filed the first suit), Nichol produced documents in discovery that, according to Trzyna "revealed that Giuffre was the real party in interest in the Nichol litigation." Specifically, Trzyna states that Nichol produced documents showing that Giuffre Associates, LLC had transferred its only assets to Giuffre. Trzyna states that Giuffre produced the same documents on June 15, 2012. Giuffre does not dispute this.

On July 3, 2012, Trzyna filed his third-amended complaint against Giuffre. In his third-amended complaint, Trzyna alleged two additional claims against Giuffre and, for the first time, sought damages of $75,109.58. Trzyna states that he also voluntarily dismissed his suit against Nichol.

On August 1, 2012, within thirty days after Trzyna filed his third-amended complaint, Giuffre removed the case to this court.

II. Discussion

As the proponent of federal jurisdiction, Giuffre "bears the risk of nonpersuasion" and must present evidence that this Court has jurisdiction. Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 682 (7th Cir. 2006).

In her removal papers, Giuffre states that she is a citizen of Connecticut, that Trzyna is a citizen of Illinois and that the amount in controversy is greater than $75,000.00. The parties agree on these facts. The parties also agree that Giuffre removed the case more than one year after Trzyna filed his original complaint in the Circuit Court of Cook County.

The parties disagree about whether the removal statute allows Giuffre to remove the case, because they disagree about whether Trzyna acted in bad faith to prevent removal. Section 1446(b)(3) states:

Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after 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.

28 U.S.C. ยง 1446(b)(3). Section 1446(c)(1) states: A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted ...


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