United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
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).
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.
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.
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.
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.
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.
Court addresses in turn Schuetter's procedural and
substantive arguments in support of remand.
Procedural Argument for Remand
asks the Court to remand this case because Esker did not
timely consent to removal. The defendants argue that the
procedural defect was cured.
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.
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