United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
August 1, 2019, Defendant ProCare Pharmacy Direct, LLC
(“ProCare”), named as CVS Pharmacy in the
Complaint, (Compl. (Dkt. No. 1-1) at 1), by and through its
attorneys, David C. Hall, April R. Walkup, and Basile
Souferis of Hall Prangle & Schoonveld, LLC, filed a
notice of removal from the Circuit Court of Cook County, case
number 19 L 7011. (Notice of Removal (Dkt. No. 1).) Presently
before us is Plaintiff Leonard Tillman's
(“Tillman”) Petition to Remand to the Circuit
Court of Cook County. (Pet. to Remand (Dkt. No. 13).) For the
reasons stated below, we remand this action to the Circuit
Court of Cook County.
defendant may remove “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.
Pursuant to 28 U.S.C. § 1446(a), defendants desiring to
remove a case from state court to federal court must file
“a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and
plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.” 28 U.S.C.
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.”
Compassionate Pain Mgmt., LLC v. Frontier Payments,
LLC, No. 17 C 5568, 2017 WL 4423409, at *3 (N.D. Ill.
Oct. 4, 2017) (citation omitted). The party seeking removal
bears the burden of establishing jurisdiction in the federal
court. See In re Brand Name Prescription Drugs Antitrust
Litig., 123 F.3d 599, 607 (7th Cir. 1997).
“[F]ederal 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.
argues its removal of Tillman's suit to federal court was
proper, because it was never noticed that service was made on
its co-defendants prior to initiating removal. (Def. Resp. to
Pl.'s Pet. to Remand (“Def. Resp.”) (Dkt. No.
22) ¶ 7.) Tillman responds that ProCare made no
reasonable attempt to determine if service was made, and
therefore cannot invoke Illinois rules to justify its failure
to receive written consent. (Pl.'s Resp. to Def. Resp. to
Pl.'s Pet. to Remand (“Pl. Resp.”) (Dkt. No.
23) ¶ 1.) Since we determine that ProCare failed to
exercise diligence in determining whether its co-defendants
had been served and because the co-defendants were served and
did not consent to removal, we need not reach the subsidiary
question whether diversity jurisdiction is proper under 28
U.S.C. § 1332(a).
defendant may remove an action to federal court if the court
has original subject-matter jurisdiction over the action. 28
U.S.C. § 1441(a). A defendant has 30 days after the
service of the summons to remove a suit to federal court. 28
U.S.C. § 1446(b). Federal jurisdiction may arise under
§ 1332 if the parties are diverse, meaning the action is
between citizens of different states, and the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a).
Federal jurisdiction arises under § 1331 when the
complaint arises under federal law. 28 U.S.C. § 1331.
28 U.S.C. § 1446(b)(2)(A), “all defendants who
have been properly joined and served must join in or consent
to the removal of the action.” 28 U.S.C. §
1446(b)(2)(A). For a suit to be removed, all defendants must
consent to the removal in writing. See Gossmeyer v.
McDonald, 128 F.3d 481, 489 (7th Cir. 1997) (“A
petition for removal is deficient if not all defendants join
in it.”); Northern Illinois Gas Co. v. Airco
Industrial Gases, 676 F.2d 270, 272 (7th Cir. 1982)
(“[A]ll defendants must join in a removal petition in
order to effect removal.”); Roe v.
O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994)
(“To ‘join' a motion is to support it in
ProCare filed a timely notice of removal within 30 days of
service, claiming the United States District Court for the
Northern District of Illinois has original jurisdiction of
this case under 28 U.S.C. § 1332(a). (Notice of
Removal ¶ 5.) ProCare states that this action is between
citizens of different states. (Notice of Removal ¶ 6.)
ProCare is an Ohio corporation and Tillman is an Illinois
resident. (Notice of Removal ¶¶ 7-8.) ProCare
further states that the amount in controversy in this action
will exceed the $75, 000 threshold required under §
1332. (Notice of Removal ¶ 13.)
ProCare did not obtain the written consent of the joined
defendants United Parcel Service, Co., (“UPS”)
and Parcel Service of America, Co., (“PSA”) in
its notice of removal. Instead, ProCare stated “[o]n
information and belief, the other Defendants, would consent
to the removal of this matter to the United States District
Court for the Northern District of Illinois.” (Notice
of Removal ¶ 11.) This statement is insufficient to meet
the requirement that all parties consent to the removal in
writing. See Compassionate Pain Mgmt., 2017 WL
4423409, at *3.
ProCare claims that it believed UPS and PSA had not been
served at the time of its notice of removal. (Notice of
Removal ¶ 10.) UPS and PSA were properly served on July
3, 2019. (Pet. to Remand ¶¶ 3-4.) The basis for
ProCare's mistaken belief is that, at the time of
removal, the Circuit Court of Cook County Docket had not been
updated to reflect service. (Notice of Removal ¶ 10.)
However, ProCare should have been “reasonably
diligent” in determining whether UPS and PSA had been
served. Caudle v. Conestoga Settlement Serv., No. C
18-985, 2018 WL 3435403, at *2 (C.D. Cal. July 12, 2018)
(citing Pianovski v. Laurel Motors, Inc., 924
F.Supp. 86, 87 (N.D. Ill. 1996) (holding even a call to check
in with the docketing clerk was insufficient diligence
because there are often delays between service an filing of
proof of service)). While courts occasionally allow filing of
untimely consent to removal, they have done so only when
“the other defendant consented to removal within the
thirty-day period, but the notice of removal simply lacked
the otherwise consenting defendant's signature.”
Compassionate Pain Mgmt., 2017 WL 4423409, at *3. We
reject ProCare's argument that Tillman “unfairly
prejudiced [ProCare] from receiving notice of service of
summons” because ProCare could have obtained this
information if it had exercised reasonable diligence. (Resp.
to Mot. to Remand (Dkt. No. 22) ¶ 7.) For example,
ProCare could have phoned UPS to ask whether they were
served. See Caudle, 2018 WL 3435403, at *2;
Pianovski, 924 F.Supp. at 87. ProCare's claim is
now untimely and cannot be amended to add UPS's and
PSA's approval, because neither UPS or PSA gave any
indication of approval to remove within the thirty-day window
for removal. See Compassionate Pain Mgmt., 2017 WL
4423409, at *4.
failed to obtain the co-defendants' consent in its notice
of removal, as required under 28 U.S.C. § 1446(b)(2)(A).
Thus, ProCare did not satisfy the necessary prerequisite to
remove this case to Federal Court. We ...