United States District Court, N.D. Illinois, Eastern Division
MAXIMILIAN I. GROSS, Plaintiff,
FCA U.S. LLC and ZACHARY M. NICHOLSON, Defendants.
MEMORANDUM OPINION AND ORDER
Castillo, United States District Court Chief Judge
Gross ("Plaintiff) originally filed this suit in the
Circuit Court of Cook County against Zachary
Nicholson ("Nicholson") and FCA U.S. LLC
("FCA, " and collectively, "Defendants"),
seeking damages for personal injuries he suffered as the
result of a high-speed, single-vehicle automobile accident.
(R. 1 -2, Am. Compl.) FCA removed the case to this Court
pursuant to 28 U.S.C. §§ 1332 and 1441. (R. 1,
Notice of Removal.) Presently before the Court are dual
motions by Plaintiff and Nicholson to remand pursuant to 28
U.S.C. § 1447(c). (R. 11, Pl's Mot.; R. 15,
Def.'s Mot.) For the reasons stated below, both motions
and Nicholson are good friends who, after receiving leave
from the Army in March 2016, drove together to Elgin,
Illinois, to visit family and friends. (R. 1-2, Am. Compl.
¶¶ 8-9.) Nicholson was driving Plaintiffs 2009
Dodge Caliber along Route 41 in Indiana, with Plaintiff in
the passenger seat, when the vehicle veered off the road and
rolled over, causing significant damage to the car's roof
structure. (Id. ¶¶ 8-14.) The accident
left Plaintiff with severe, permanent, and progressive
injuries, including quadriplegia and brain trauma.
August 2, 2016, Plaintiff filed suit in the Circuit Court of
Cook County, asserting negligence and product liability
claims against FCA related to the 2009 Dodge Caliber,
a negligence claim against Nicholson. (R. 1-1, Compl.
¶¶ 18-50.) In the complaint, Plaintiff alleged that
both he and Nicholson were citizens of Illinois, and that FCA
was a citizen of England and the Netherlands. (Id.
¶¶ 1-2, 4.)
29, 2017, FCA removed the case to this Court, asserting
subject-matter jurisdiction based on diversity of
citizenship. (R. 1, Notice of Removal ¶ 7.) FCA
contended in its notice of removal that "Nicholson does
not have a legitimate basis for Illinois citizenship"
and that he was instead a citizen of either North Dakota or
Kentucky, rendering diversity complete. (Id. ¶
5.) On July 27, 2017, both Plaintiff and Nicholson moved to
remand the case. (R. 11, Pl's Mot.;R. 15, Def.'sMot.)
their motions to remand, Plaintiff and Nicholson both argue
that FCA's removal is procedurally defective because
Nicholson did not consent to removal. (R. 12, Pl's Mem.
at 5, 6-10; R. 16, Def.'s Mem. at 11-13.) Plaintiff and
Nicholson both argue that complete diversity, as required
under 28 U.S.C. § 1332(a), is lacking because Nicholson
was a citizen of Illinois at the time the complaint was
filed. (R. 12, Pl's Mem. at 6, 11-14; R. 16, Def.'s
Mem. at 7-11.) Separately, Nicholson contends that the case
must be remanded because FCA's removal was untimely under
28 U.S.C. § 1446(b)(3). (R. 16, Def.'s Mem. at
13-14.) Nicholson argues that FCA filed its notice of removal
more than 30 days after receiving documents that would have
alerted it that the case was removable. (Id.) Last,
Plaintiff and Nicholson both argue that 28 U.S.C. §
1441(b)(2) bars removal because, under a proper citizenship
analysis, Nicholson is a forum defendant. (R. 12, Pl's
Mem. at 6, 11-14; R. 16, Def.'s Mem. at 11.)
defendant may remove to federal court "any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction." 28 U.S.C.
§ 1441(a). In a case that has been removed, a plaintiff
may file "[a] motion to remand the case on the basis of
any defect other than lack of subject matter jurisdiction . .
. within 30 days after the filing of the notice of
removal." 28 U.S.C. § 1447(c). "In considering
a motion for remand, the court must examine the
plaintiff['s] complaint at the time of the
defendant's removal and assume the truth of all factual
allegations contained within the original complaint."
Scouten v. MNL-FTS, LLC, 708 F.Supp.2d 729, 731
(N.D, 111. 2010) (citation omitted). The removing party-here,
FCA- bears the burden of establishing the propriety of
removal, and any doubts concerning removal should be
"resolved in favor of the plaintiffs choice of forum in
state court." Morris v. Nuzzo, 718 F.3d 660,
668 (7th Cir. 2013); see also Schur v. LA. Weight Loss
Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009)
("[F]ederal courts should interpret the removal statute
narrowly, resolving any doubt in favor of the plaintiffs
choice of forum in state court.").
Timeliness of Removal
Court first addresses Nicholson's argument that removal
was untimely under 28 U.S.C. § 1446. Section 1446
provides that a notice of removal must be filed "within
30 days after the receipt by the defendant. . . of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based." 28 U.S.C
§ 1446(b)(1). However, "if the case stated by the
initial pleading is not removable, a notice of removal may be
filed within thirty days after receipt by the defendant... of
an amended pleading, motion, order or other paper from which
it may first be ascertained that the case is ... or has
become removable." 28 U.S .C. § 1446(b)(3).
Nicholson does not contend that the case as stated by the
initial complaint was removable; the question is only whether
removal was timely under Section 1446(b)(3).
contends that removal was timely because it filed the notice
of removal within 30 days of receiving a transcript of
Nicholson's deposition. (R. 1, Notice of Removal ¶
8.) FCA asserts that Nicholson's deposition was the first
time it ascertained that the case was removable, and that it
timely removed the case within 30 days of receiving the
deposition transcript. (R. 27, Def's Resp. at 15.) Nicholson
counters that removal was untimely because discovery produced
long before his deposition provided much of the information
on which FCA relies to establish federal jurisdiction. (R.
16, Def.'s Mem. at 13-14.) Specifically, Nicholson points
out that the police report filed after the accident listed a
North Dakota address for him and showed that he possessed a
North Dakota driver's license at the time. (Id.)
Nicholson also asserts that documents produced before his
deposition showed that he moved to Chicago and obtained an
Illinois driver's license after the accident, but shortly
before Plaintiff filed suit. (Id.) Nicholson
contends that the 30-day removal clock began well before his
deposition, and that his deposition transcript was not a
paper "from which it may first be
ascertained" that the case was removable. See
28 U.S.C. § 1446(b)(3) (emphasis added).
trigger die 30-day removal clock under Section 1446(b)(3),
the defendant must receive a pleading or other litigation
paper that "affirmatively and unambiguously reveals that
the predicates for removal are present." Walker v.
Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir.
2013). "[T]he timeliness inquiry is limited to .. .
examining [the] contents of the clock-triggering pleading or
other litigation paper; the question is whether that
document, on its face or in combination with
earlier-filed pleadings, provides specific and unambiguous
notice that the case satisfies federal jurisdictional
requirements and therefore is removable." Id.
at 825. "This bright-line rule promotes clarity and ease
of administration for the courts, discourages evasive or
ambiguous statements by plaintiffs in their pleadings and
other litigation papers, and reduces guesswork and wasteful
protective removals by defendants." Id. at 824.
It is important to note, however, that "[t]he moment a
case becomes removable and the moment the 30-day removal
clock beings to run 'are not two sides of the same
coin.'" Id. (citation omitted). In other
words, a case may become removable to federal court without
the 30-day clock ever being triggered. See Id. at
825 ("The earliest possible trigger for the removal
clock was [plaintiffs] response to [defendant's] requests
for admission seeking formal clarification of the theory of
damages... . Even that document, however, did not
affirmatively specify a damages figure .... So the removal
clock never actually started to run."); Hosteller v.
Johnson Controls, Inc., No. 3:15-CV-226 JD, 2016 WL
3662263, at *4 n.2 (N.D. Ind. July 11, 2016) ("The
removal clocks only set deadlines, they do not create
exclusive windows within which a case must be removed, so a
defendant can remove a case even if the removal clocks never
Court concludes that FCA's removal was not untimely
because the 30-day removal clock under Section 1446(b)(3)
never started. FCA asserts subject-matter jurisdiction in
this Court based on diversity of citizenship, claiming that
diversity exists because Nicholson was in fact a citizen of
North Dakota not Illinois, at the time the suit was
filed. (R. 1, Notice of Removal ¶¶ 5-6.) Nicholson
disputes that his deposition was the first time FCA could
have ascertained his North Dakota citizenship. However, none
of the pre-deposition discovery materials cited by Nicholson
affirmatively and unambiguously revealed that he was a
citizen of North Dakota at the time this suit was ...