Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schuetter v. Esker

United States District Court, S.D. Illinois

November 20, 2019

SHIRLEY SCHUETTER, Plaintiff,
v.
GAIL ESKER and KOHL'S, INC., Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE.

         This matter comes before the Court on the Court's September 25, 2019, order for defendant Kohl's Department Store's Inc. (misnamed in the Complaint as Kohl's, Inc.) (hereinafter, the “Store”) to show cause why the Court should not remand this case for lack of subject matter jurisdiction in light of the absence of complete diversity (Doc. 6). The Store responded to the order to show cause by filing the Amended Notice of Removal (Doc. 13).

         The Court also considers the plaintiff Shirley Schuetter's motion to remand for procedural deficiencies in the removal and for lack of subject matter jurisdiction based on the lack of complete diversity noted in the Court's order to show cause (Doc. 14). The defendants have responded to the motion (Doc. 23), and Schuetter has replied to that response (Doc. 25).

         I. Procedural History

         Schuetter filed this case in the Circuit Court for the Fourth Judicial Circuit, Effingham County, Illinois. In her complaint, she claims that defendant Gail Esker, an employee of the Store, was pushing a cart on which items were stacked so as to obscure Esker's view. Schuetter claims Esker pushed the cart into her, causing her to fall and become seriously injured. Schuetter sued both Esker and the Store, which she seeks to hold vicariously liable for Esker's conduct.

         Jurisdictional questions in this case arose after the Store removed this case to this Court (Doc. 1). As the basis for this Court's removal jurisdiction under 28 U.S.C. § 1441(a), the Store asserted original diversity jurisdiction, 28 U.S.C. § 1332(a), even though Schuetter and defendant Esker are both citizens of Illinois. The Court noted the apparent lack of complete diversity and ordered the Store to show cause why the Court should not remand this case for lack of subject matter jurisdiction (Doc. 6). The Store then filed the Amended Notice of Removal asserting the theory that, since Esker was an employee of the Store and complete relief could be obtained from the Store, the Court should disregard Esker's citizenship for jurisdictional purposes (Doc. 13). The Store further suggested the Court drop Esker from this case pursuant to Federal Rule of Civil Procedure 21 because she is a dispensable party under Federal Rule of Civil Procedure 19.

         Apparently dissatisfied by the Store's explanation of the basis for diversity jurisdiction, Schuetter filed a motion to remand, raising an objection about the removal procedure and echoing the concerns of the Court that complete diversity does not exist (Doc. 14). She maintains that Esker is a proper defendant in this suit because of her role as an independent tortfeasor in the alleged tort. Additionally, Schuetter asks the Court to remand the case because, although Esker was properly joined and served with the complaint, she did not join in or consent to removal in a timely manner as required by 28 U.S.C. § 1446(b)(2)(A). To the extent Esker is a dispensable party, Schuetter urges the Court to exercise its discretion to keep Esker in this case.

         In response, Esker expresses in writing her consent to removal of this case and argues that the notice of appearance by counsel on her behalf a week after removal sufficiently expresses her consent to removal and cures any defect prior to that time. She and the Store further accuse Schuetter of fraudulently joining Esker in this lawsuit for the sole purpose of destroying diversity jurisdiction and again urge the Court to dismiss Esker under Rule 21.

         II. Analysis

         The Court addresses in turn Schuetter's procedural and substantive arguments in support of remand.

         A. Procedural Argument for Remand

         Schuetter asks the Court to remand this case because Esker did not timely consent to removal. The defendants argue that the procedural defect was cured.

         The Court begins with the procedural facts. Although Esker was served with the summons and complaint on July 28, 2019, she did not join in the Store's original Notice of Removal filed on August 28, 2019 (Doc. 1). The Notice of Removal was timely as to the Store, which was served with the summons and complaint on August 1, 2019. The original Notice of Removal did not state that Esker consented to removal, and Esker did not file anything on her own indicating she consented to it. The Store's attorney of record entered her appearance for Esker shortly after the removal, but the notice of appearance did not even hint at Esker's consent to removal. The Store filed an Amended Notice of Removal on September 13, 2019, but like the original Notice of Removal, it was not filed on behalf of Esker and did not indicate her consent to removal. The first written indication of Esker's consent is contained in the defendants' response to Schuetter's motion to remand, which was filed on October 14, 2019 (Doc. 23). This was 78 days after Esker, and 74 days after the Store, was served with the summons and complaint.

         The law is clear that when a case is removed from state court to federal court under 28 U.S.C. § 1441(a), all served and properly joined defendants must join in the notice of removal in writing. 28 U.S.C. § 1446(b)(2)(A) (stating “all defendants who have been properly joined and served must join in or consent to the removal of the action”); N. Ill. Gas Co. v. Airco Indus. Gases,676 F.2d 270, 272 (7th Cir. 1982); see Home Depot U.S.A., Inc. v. Jackson, 139 S.Ct. 1743, 1746 (2019); MB Fin., N.A. v. Stevens, 678 F.3d 497, 499 (7th Cir. 2012); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994) (“A petition for removal fails unless all defendants join it. To ‘join' a motion is to support it in writing. . . .”), overruled in part on other grounds by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). The failure of even one served defendant to timely consent to removal in writing renders a notice of removal defective and subject to remand unless the removing defendant explains the absence of the missing defendant. N. Ill. Gas, 676 F.2d at 273. However, the failure to explain the absence of a defendant's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.