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Graff v. Leslie Hindman Auctioneers, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 26, 2017

STANLEY V. GRAFF, Plaintiff,
v.
LESLIE HINDMAN AUCTIONEERS, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, DISTRICT COURT JUDGE

         Plaintiff Stanley V. Graff (“Graff” or “Plaintiff”) sued Defendants Leslie Hindman Auctioneers, Inc. (“Hindman”); Biltmore Loan and Jewelry-Scottsdale, LLC (“Biltmore”); The Owings Gallery, Inc. (“Gallery”); Nathaniel O. Owings (“Owings”); Ray Harvey (“Harvey”); and Unknown Defendants 1-3 (collectively, “Defendants”) in the Circuit Court of Cook County, Illinois. (R. 1-1.) Defendant Harvey removed the case to federal court. (R. 1.) Before the Court is Plaintiff Graff's motion for remand. (R. 13.) Defendant Harvey opposes the motion. (R. 26.) For the following reasons, the Court denies 1) Plaintiff's motion for remand and 2) Plaintiff's request (and Defendant's counter request) for attorneys' fees and costs associated with the removal/remand.

         BACKGROUND

         Plaintiff Graff brings this suit to recover allegedly stolen and pawned paintings. Plaintiff claims that Deborah Graff, a woman he was divorcing at the time, stole three pieces of “Western American art” from his Dallas home. (R. 1-1 at ¶ 16, 21.) Plaintiff further alleges that Deborah Graff pawned the three paintings with Biltmore and then failed to pay back the loan secured with the paintings. (Id. at ¶ 21-22, 31.) The paintings changed hands from Biltmore to Hindman, who sold two of the three paintings at an auction in September 2015. (Id. at ¶ 22-23.) Gallery, Owings, and Harvey, among others, bought one of the paintings as a group. (Id. at ¶ 25.) These parties, as well as the other current owners of the paintings, have either refused to return the paintings to Plaintiff or Plaintiff has been unable to contact them on account of not knowing their identity. (Id. at ¶ 24, 30, 32.)

         Plaintiff Graff filed this lawsuit in the Circuit Court of Cook County on August 25, 2017. (R. 1-1; R. 15 at 1.) On the same day, Plaintiff requested issuance of a summons for each Defendant and summonses were issued on August 25, 2017. (R. 15 at 2.) One business day after the summonses were issued, on August 28, 2017, Plaintiff sent a copy of the complaint and each summons to the appropriate sheriffs' offices for service on the Defendants, as suggested by Illinois statute 735 ILCS 5/2-202(a).[1] (Id. at 2, 12-15.) The sheriffs began serving the Defendants, including Harvey and Hindman. (Id. at 2-3.) The sheriff served Defendant Harvey on September 7, 2017, and Harvey filed his notice of removal on September 19, 2017. (R. 1; R. 26 at 4-5; R. 15 at 2-3.) Defendant Hindman was served on September 21, 2017. (R. 26 at 5; R. 15 at 5.)

         Plaintiff Graff now moves to remand the case back to the Circuit Court of Cook County, and also moves for attorneys' fees and costs associated with the improper removal. (R. 13.) Defendant Harvey opposes the motion and also requests its own attorneys' fees and costs. (R. 26.)

         LEGAL STANDARD

         “‘Federal courts are courts of limited jurisdiction, ' and ‘[t]he circumscribed nature of the federal judiciary's jurisdiction is a function of restrictions placed upon it by both the United States Constitution and federal statutory law, both of which must authorize a federal court to hear a given type of case.'” Munoz v. Ekl, Williams & Provenzale LLC, 2013 WL 1611373, *1 (N.D. Ill. Apr. 15, 2013) (quoting Int'l Union of Operating Eng'rs, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir. 2009)); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (“The district courts of the United States, as we have said many times, are ‘courts of limited jurisdiction. They possess only that power authorized by [the] Constitution and statute.'” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). “Defendants may remove a civil action from state court to the federal district court located in the place where such action is pending, as long as the federal district court had original jurisdiction over the case.” Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 968 (7th Cir. 2013) (internal quotation marks omitted); see also 28 U.S.C. § 1441(a). In other words, a “case filed in state court may be removed to federal court only when the case originally could have been filed in federal court.” Northeastern Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, Inc., 707 F.3d 883, 890 (7th Cir. 2013).

         “Defendants may remove civil suits filed in state court to federal court pursuant to 28 U.S.C. § 1441 and related statutes.” Alegre v. Aguayo, 2007 WL 141891, *2 (N.D. Ill. Jan. 17, 2007). Removal based on diversity of citizenship under § 1332(a), however, is governed by the forum defendant rule: “A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). “In other words, the forum defendant rule disallows federal removal premised on diversity in cases where the primary rationale for diversity jurisdiction-to protect defendants against presumed bias of local courts-is not a concern because at least one defendant is a citizen of the forum state.” Morris v. Nuzzo, 718 F.3d 660, 665 (7th Cir. 2013).

         “The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); see also Morris, 718 F.3d at 668 (explaining that a party seeking removal bears the burden of proving the propriety of removal and doubts regarding removal are resolved in favor of the plaintiff's choice of forum in state court); Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004) (explaining that the burden of establishing federal jurisdiction falls on the party seeking removal); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (“Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum”); Trevino v. U-Haul Co. of Illinois, 2008 WL 4951321, *2 (N.D. Ill. Nov. 18, 2008) (“A plaintiff's choice of forum is presumed valid and the Court must resolve any doubts about jurisdiction in favor of remand.”).

         ANALYSIS I. Removal

         Defendant Harvey removed this case on the basis of 28 U.S.C. §§ 1441 and 1332. (R. 1.) Under § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Here, Defendant Harvey removed this action from the Circuit Court of Cook County of the State of Illinois on the basis of the Court's diversity jurisdiction under § 1332(a), which requires complete diversity between the parties and more than $75, 000 at issue.

         Both requirements of § 1332(a) are satisfied here. There is complete diversity between the parties based on their citizenship at the time of removal. See In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 380 (7th Cir. 2010) (“The well-established general rule is that jurisdiction is determined at the time of removal, and nothing filed after removal affects jurisdiction.”). The citizenship of the Plaintiff (Texas) is not in dispute, nor is the citizenship of the Defendants Hindman[2] (Illinois), Biltmore (Arizona and maybe Nevada), Gallery (New Mexico), Owings (New Mexico), Harvey (Arizona), and Unknown Defendants 1-3 (none of whom are citizens of Texas). (R. 1 at ¶ 4-10, 15-21; R. 7 at ¶ 1, 4-5; R. 26 at 4.) Furthermore, the parties do not dispute that the amount in controversy exceeds $75, 000.00. (R. 1 at ¶ 11; R. 15 at 4 (n. 3).)

         II. Remand

         Plaintiff Graff has moved to remand based on the forum defendant rule because Defendant Hindman is a citizen of Illinois. (R. 15.) Section 1441(b)(2), the “forum defendant rule, ” bars removal on the basis of § 1332(a) diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” The parties dispute whether the phrase “properly joined and served” requires service on the resident defendant for the forum defendant rule to preclude removal to federal court. Defendant Harvey stresses that for the forum defendant rule to apply, the in-forum defendant must be both joined and served-and Defendant Hindman was not ...


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