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Shameka Brown v. Fifth Third Bank

December 20, 2012

SHAMEKA BROWN, PLAINTIFF,
v.
FIFTH THIRD BANK, DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Pending before the court are plaintiff Shameka Brown's motion to remand this case to state court (Dkt. No. 13) and 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). To attempt to resolve several evidentiary disputes related to the motions, the court began to hold an evidentiary hearing on December 19, 2012. In preparation for the hearing, the court ordered counsel for both sides to submit "any agreed factual findings, a list of witnesses with a brief summary of what they will testify to, any relevant documents, and pertinent law" by December 14, 2012. (Dkt. No. 40.) Fifth Third Bank submitted the required materials on December 14, 2012 (Dkt. No. 41-43), and indicated that although it had proposed agreed factual findings to Brown on December 11, 2012 (Dkt. No. 43, at 1 n.1.), Brown had not responded. Brown did not submit any materials to the court before December 19, 2012.

Richard Zachary, counsel for Brown, appeared fifteen minutes late to the hearing on December 19, 2012. Upon his arrival, Mr. Zachary attempted to tender to the court his exhibits and witness list for the hearing. Because neither Fifth Third Bank nor the court had an opportunity to review the exhibits Brown's counsel tendered prior to the hearing, the court stated that it may be necessary to continue the hearing. Because one of Fifth Third Bank's witnesses had traveled from Delaware and another was soon leaving the country for an extended period, however, the court heard the testimony of those two witnesses before continuing the hearing for January 9, 2013, at 9:30 am. Because of several representations by Brown's counsel during and after the testimony of the two witnesses on December 19, 2012, however, the court determines that the pending motions can be resolved without further testimony, and without any further evaluation by the court of the outstanding factual disputes. Accordingly, the court denies Brown's motion to remand (Dkt. No. 13) and grants Fifth Third Bank's motion to dismiss (Dkt. No. 1, Ex. C). The evidentiary hearing set for January 9, 2013, at 9:30 am is cancelled.

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 operated by Fifth Third Bank. (Dkt. No. 33 ¶ 1).

Fifth Third Bank asserts that Brown never properly served it with the summons and complaint. Yet, 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 referenced Brown's complaint against Fifth Third Bank, but the intervening six pages refer to an unrelated lawsuit and 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 on September 27, 2011, and was the only complaint in the state court record. (Dkt. No. 1, Ex. E, Ex. A.) To complicate matters further, Brown stated that, unbeknownst to Brown's attorneys, the envelope that was served on Fifth Third Bank included an "unrelated bunch of pages stapled together due to the inadvertent oversight of an unidentified employee in [their] office"-the Wrong Complaint. (Dkt. No. 1, Ex. E, at 2 n.4.) According to Brown, Fifth Third Bank was thus served on September 27, 2011, with both the Wrong Complaint and the Correct Complaint, but Fifth Third Bank chose to ignore the Correct Complaint and responded by filing a motion to dismiss the Wrong Complaint.

After receiving a copy of Brown's response on April 11, 2012, Fifth Third Bank 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, on April 23, 2012, Fifth Third Bank removed the case to federal court on the basis of diversity of citizenship. (Dkt. No. 1.) While in federal court, the parties completed the briefing on Fifth Third Bank'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).

The briefing on the motion to dismiss left two key factual issues outstanding. First, Fifth Third Bank submitted two affidavits from Andrew Gachaiya, a Customer Service Specialist at CSC, contesting Connolly's statement that she served a summons on Fifth Third Bank at CSC on September 27, 2011. (Dkt No. 6, Ex. F; Dkt. No. 33, Ex. F.) According to Gachaiya, CSC has no record of any summons served on that date directed to Fifth Third Bank or any related entity. (Dkt. No. 33, Ex. F ¶ 7.) Gachaiya's affidavit thus directly contradicts Connolly's affidavit about her efforts to serve Fifth Third Bank at CSC in Springfield.

Second, the parties continued to dispute the contents of the state court record. Following removal, the court ordered Fifth Third Bank to file a certified copy of the state court record. (Dkt. Nos. 11, 19.) The first document in the certified state court record that Fifth Third Bank filed is the Correct Complaint, stamped June 29, 2011, at 4:35 p.m. (Dkt. No. 20, Ex. B.) Moreover, the Wrong Complaint never appears as a pleading in the state court record. (Id.)*fn1 Nonetheless, Fifth Third Bank's attorney persisted in her assertion by affidavit that the Wrong Complaint was in the state court record at the time she checked it before filing an appearance in the state court case. (Dkt. No. 9, Ex. G ¶¶ 2-3.) According to her statement submitted with the certified state court record:

When Fifth Third's counsel was obtaining the certified copies [of the state court record], one other pleading was missing from the court file: the complaint Fifth Third has referred to as the "Initial" Complaint [aka the Wrong Complaint] was not in the state court file. This was the first time, in the several occasions in which Fifth Third looked at the state court file, that the Initial Complaint was not in the file.

(Dkt. No. 20 ¶ 4.) Brown's attorney submitted a competing affidavit indicating that the only complaint he ever filed was the Correct Complaint, and that he checked the state court record and confirmed that the Correct Complaint was on file sometime between February 14, 2012, and April 11, 2012. (Dkt. No. 1, Ex. E, Ex. E ¶¶ 2, 8.)

In light of those factual disputes, the court set the December 19, 2012, evidentiary hearing to allow the parties to present evidence and argument on the questions of which complaint was in the state court record, which complaint is currently operative, and whether the court should believe Connolly's assertions that she attempted to serve a summons on Fifth Third Bank at CSC on September 27, 2011, or ...


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