April 29, 2013
RIDGESTONE BANK, Plaintiff,
DUNKIN' DONUTS FRANCHISING LLC, BASKIN-ROBBINS FRANCHISING LLC, and SHREE BKR, INC., Defendants.
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Dunkin' Donuts Franchising LLC and Baskin-Robbins Franchising LLC (collectively "Dunkin', " treated for convenience as a singular noun after this sentence) have filed a Notice of Removal to bring this action by Ridgestone Bank ("Ridgestone") against Dunkin' and Shree BKR, Inc. ("Shree") from the Circuit Court of Cook County to this District Court. Dunkin' has concededly not complied with the universal and basic requirement that all defendants must join in removal (see, e.g., 16 Moore's Federal Practice ["Moore's"] § 107.11[c] (3d ed. 2012), this Court's article entitled TRAPS FOR THE UNWARY IN REMOVAL AND REMAND in 33 Litigation No. 3 at 43, 44 (2007) and, with particular reference to Seventh Circuit law, McMahon v. Bunn-O-Matic Corp. , 150 F.3d 651, 653 (7th Cir. 1998) and cases cited there). But Dunkin' seeks to justify that omission on the ground that Shree was fraudulently joined and therefore need not be accounted for.
To that end Notice § II.B is headed:
Plaintiff's Claim Against Defendant Shree BRK, Inc. Fails Because Illinois Does Not Recognize a Cause of Action for Injunctive Relief.
And for that proposition Dunkin's counsel quote a snippet from a recent Illinois Appellate Court case, Town of Cicero v. Metro. Water Reclamation Dist. of Greater Chicago, 2012 IL App. (1st) 112164 ¶ 46, 976 N.E.2d 400, 414 (1st Dist. 2012):
A permanent injunction, however, is not a separate cause of action.
But that highly selective and limited (and hence misleading) quotation must be read in context (as Dunkin's counsel have not done), and the Illinois Appellate Court's explanation that immediately precedes that language proves the shallowness (or more precisely the emptiness) of Dunkin's argument:
As previously noted, a party seeking a permanent injunction must first succeed on the merits. Beretta U.S.A. Corp., 213 Ill.2d at 431, 290 Ill.Dec. 525, 821 N.e.2d 1099. This necessarily means that there must be a recognized cause of action underlying the request for injunctive relief and that the party seeking such relief must first prevail on the merits of that underlying cause of action. See 42 Am.Jur.2d Injunctions § 18 (2010) ("a permanent injunction will be granted only when liability has been established"); Black's Law Dictionary 1003 (7th ed. 1999) (defining "merits" as "[t]he elements or grounds of a claim or defense").
On that score it cannot be gainsaid that Ridgestone has a bona fide substantive claim directly against Shree, for Ridgestone has a security interest, superior both in right and in time, that covers all of the assets of the Dunkin' franchise that were pledged to it by its borrower - Farhat & Sons, Inc., the company from which Shree purchased the Dunkin' franchise and took possession of the pledged assets with which the franchisee carries on its business.
Although it is true that Complaint Count III carries a caption "For Injunctive Relief Against Shree BKR, Inc., " the substantive allegations in Count III ¶¶ 34-36 identify Ridgestone's security interest in the equipment, fixtures and inventory of the franchise, while Count III ¶ 35 alleges that substantial portions of the equipment and fixtures remain on the restaurant premises in the current possession and operation of Shree, and Count III ¶ 68 alleges:
Ridgestone has a clear right to possession of the equipment and fixtures on the restaurant premises, which should be free from interference by Shree.
Those allegations plainly advance the "underlying cause of action" called for by Town of Cicero and like cases. And given that, Dunkin' claims the "fraudulent joinder" of Shree? Nonsense.
Accordingly this Court holds that the current removal is flawed by Dunkin's failure to have caused all defendants, including Shree, to join. In that respect the caselaw teaches that such a failure is not a jurisdictional defect that should trigger a sua sponte remand by this Court under the nonreviewable provision of 28 U.S.C. § 1447(d). Because everyone's interests will be best served by permitting the litigation to go forward on the merits without any diversion into procedural byways, counsel for Ridgestone is ordered on or before May 7, 2013 to state whether Ridgestone prefers that the case be remanded to its state court of origin or, alternatively, wishes to waive Dunkin's failure.