United States District Court, N.D. Illinois, Eastern Division
GLORIA DULTRA and MARYANNE LASTA, individually and derivatively on behalf of LEDMAN HEALTH CARE, INC., an Illinois Corporation Plaintiffs,
US MEDICAL HOME, INC., a Delaware corporation, MICHAEL KESELICA and GRACE KULIK, Defendants/Counter-Plaintiff.
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Plaintiff Ledman Health Corporation ("Ledman") filed suit against U.S. Medical Home, Inc. ("US Medical Home") in the Circuit Court of Kane County on September 26, 2012, seeking the rescission of a stock purchase agreement and certain employment agreements. Compl. (Dkt. 18-1). Ledman later amended its complaint in state court and added Michael Keselica and Grace Kulik as defendants. Am. Compl. (Dkt. 18-9). Keselica removed the case to this Court on October 22, 2013, on the basis of diversity jurisdiction and with the consent of U.S. Medical Home. The plaintiffs seek to remand the case to the Circuit Court of Kane County pursuant to 28 U.S.C. § 1447(c). For the reasons discussed below, the Court denies the plaintiffs' motion.
The underlying facts of this lawsuit are hotly contested but not particularly relevant to the motion before the Court. The procedural facts, which are highly relevant, are as follows:
After Ledman filed suit in state court, U.S. Medical filed a motion to dismiss (Dkt. 18-3), a counterclaim against Ledman seeking a declaratory judgment that the stock purchase agreement was valid and enforceable (Dkt. 18-4), and a third-party complaint against Andrew Kolb, Ledman's former attorney (Dkt. 18-5).
On April 2, 2013, Gloria Dultra and Maryanne Lasta, Ledman shareholders, filed an amended complaint on Ledman's behalf for fraud, rescission, breach of contract, and other relief against U.S. Medical Home and two additional defendants, Michael Keselica and Grace Kulik. Am. Compl. (Dkt. 18-9). The amended complaint alleged that Keselica and Kulik are, or were, officers, representatives, or agents of U.S. Medical. Id. ¶ 4. Filings in the state case and in this Court identify Keselica as the "President and CEO" of U.S. Medical Home.
On April 16, 2013, the plaintiffs were granted leave to appoint a special process server and after several rounds of unsuccessful settlement negotiations, the plaintiffs filed a Motion for Service by Special Order of the Court on September 24, 2013. Dkt. 18-10; Dkt. 18-20. The plaintiffs explained in their remand motion that "despite diligent efforts... including multiple searches and repeated attempts at service by a process server, Plaintiffs have been unable to effect personal service upon Keselica...." Dkt. 18-20 at 1. The plaintiffs add that U.S. Medical Home's counsel would not indicate whether he would accept service on Keselica's behalf. Id. The plaintiffs do not report, nor do the exhibits attached to the plaintiffs' motion to remand reflect, that their motion for service was granted or that Keselica was ever served with the amended complaint.
For his part, Keselica filed a Request for Service of Process on the same day as the plaintiffs' motion for service. In this odd motion, Keselica stated that he had been added as a defendant in the plaintiffs' amended complaint, that a special process server had been appointed to serve him, and that the plaintiffs had nevertheless failed to serve him. The plaintiffs, Keselica suggested, were somehow "abusing process" and he requested an order requiring them to serve him with the amended complaint. Dkt. 18-21 at 1-2. So far as the state court docket reflects, no order was entered with respect to Keselica's motion for service.
About four weeks later, on October 18, 2013, Keselica filed a Notice of Removal to this Court, asserting that the parties are completely diverse and the amount in controversy exceeds $75, 000. Dkt. 1 ¶¶ 5-7. He attached to the notice U.S. Medical Home's Consent to Removal, which Keselica signed as the company's president and CEO. Dkt. 18-23.
On November 19, 2013, the plaintiffs filed a Joint Motion to Remand (Dkt. 18), which is now before this Court.
Section 1446(b)(1) of Title 28 sets forth the procedures governing removal of an action from state to federal court. It states, in relevant part:
The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading... or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
Keselica, as the party seeking to invoke federal jurisdiction, bears the burden of demonstrating that removal is proper. See Boyd v. Phoenix Funding ...