United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
M. ROWLAND, UNITED STATES DISTRICT JUDGE
October 21, 2019, Defendant Edward Orton, Jr. Ceramic
Foundation (“Defendant” or “Orton”),
timely removed this case from the Circuit Court of Cook
County to the Northern District of Illinois. Plaintiffs Bruce
and Deborah Johnson moved to remand . Defendant
simultaneously filed a response to Plaintiffs' motion to
remand  and its own motion for leave to supplement the
Notice of Removal . For the reasons that follow,
Defendant's motion to supplement  is granted, and
Plaintiffs' motion to remand  is denied.
Bruce Johnson has malignant pleural mesothelioma, a fatal
cancer. (Dkt. 34 at 1). Johnson and his wife, both citizens
of Illinois, filed the instant action in the Circuit Court of
Cook County on November 9, 2018 against eleven defendants.
(Id. at 2) Plaintiffs' complaint pleads three
counts: 1) a products liability claim for products containing
or contaminated with asbestos based in negligence; 2) a
products liability claim for products containing or
contaminated with asbestos but with intent or reckless
disregard; and 3) a loss of consortium claim. For each count,
Plaintiffs seeks compensatory damages in excess of $50, 000,
for a total amount in controversy of at least $150, 000.
to Orton, removal was not possible due to a single
non-diverse Defendant. (Dkt. 1 at 1) The matter was set for
trial in state court on November 4, 2019. (Id. at 3)
Several weeks before trial, on October 14, 2019,
Plaintiffs' counsel announced that Plaintiffs had entered
into a settlement agreement with several Defendants,
including the single non-diverse Defendant. (Id. at
1) A few days later, Defendant Orton filed a Notice of
Removal based on diversity jurisdiction. (Id.) The
Notice of Removal alleges that the remaining two Defendants
are not citizens of Illinois. Specifically, the Notice
alleges that Defendant Orton is a foundation organized under
the laws of the State of Ohio with a principal place of
business in Ohio. (Id. at 3) Thus, according to the
Notice of Removal, Defendant Orton is a citizen of the State
of Ohio. As for the second Defendant, Orton alleges that
Defendant Vanderbilt Minerals, LLC, is a limited liability
company organized under the laws of the State of Delaware.
(Id.) R.T. Vanderbilt Holding Company, Inc. is the
sole member of Vanderbilt Minerals, LLC, and is incorporated
under the laws of the State of Delaware with a principal
place of business in Delaware. (Id.) According to
Orton, Defendant Vanderbilt Minerals is a citizen of Delaware
for diversity purposes. (Id.)
moved to remand, arguing that there is no evidence as to the
citizenship of Defendant Orton and that any amendment to add
new jurisdictional allegations should be denied as untimely.
(Dkt. 34 at 3, 5) In particular, Plaintiffs argue that Orton
is not a foundation, but a trust, and that the citizenship of
several trustees cannot be determined for the purposes of
diversity jurisdiction. (Id. at 3-4) Defendant filed
a response to Plaintiffs' motion to remand and its own
motion for leave to supplement its Notice of Removal. (Dkt.
37; Dkt. 36) Orton concedes that it is a trust-not a
foundation-created by the Last Will and Testament of Edward
Orton (the “Will”). (Dkt. 37 at 3) Orton
additionally provides information regarding the citizenship
of each trustee.
defendant may remove a case to federal court if there is a
basis for federal subject matter jurisdiction. 28 U.S.C.
§§ 1441(a), 1446. The party seeking removal bears
the burden of establishing federal jurisdiction. Boyd v.
Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir.
2004). The Court must interpret the removal statute narrowly,
and any doubts regarding jurisdiction are resolved in favor
of remand. Wirtz Corp. v. United Distillers & Vitners
N. Am., Inc., 224 F.3d 708, 715-16 (7th Cir. 2000).
to federal court is proper when diversity of citizenship
exists between the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332. A notice of removal
must usually be filed within 30 days of a defendant being
served, receiving a copy of the complaint, or, as in this
case, receipt of any notice “from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). The 30-day
deadline is not jurisdictional, but is strictly applied.
Pinnacle Performance v. Garbis, No. 12 C 1136, 2012
U.S. Dist. LEXIS 55485, at *3-7 (N.D. Ill. April 20, 2012)
(citing Walton v. Bayer Corp., 642 F.3d 994, 998
(7th Cir. 2011)). After the 30-day removal period, a
defendant may amend “defective allegations of
jurisdiction” only with the court's permission.
See 28 U.S.C. § 1653.
Timeliness of Jurisdictional Supplement
argue that Defendant Orton's supplemental allegations
regarding the citizenship of the parties should be denied as
untimely because more than 30 days have lapsed since
Defendant filed its Notice of Removal. (Dkt. 34 at 5) (citing
Stein v. Sprint Communications Co., L.P., 968
F.Supp. 371, 376 (N.D. Ill. 1997)). Defendant responds that
its allegation in the Notice of Removal identifying Orton as
a foundation is a technical defect that may be amended after
the 30-day period for removal has expired. (Dkt. 37 at 8-9)
district courts sitting in Illinois interpret 28 U.S.C.
§ 1653 to permit amendment of technical defects in a
notice of removal after the 30-day period expires. See
e.g., Mathur v. Hospitality Props. Trust, No. 13 C 7206,
2014 U.S. Dist. LEXIS 169912, at *4 (N.D. Ill.Dec. 8, 2014);
Howell v. Joffe, 478 F.Supp.2d 1014, 1018 (N.D. Ill.
2006) (allowing removing party to file supplemental
jurisdictional allegations to cure defect relating to the
citizenship of each partner of a general partnership even
though the 30-day time period had run); Pinnacle
Performance v. Garbis, No. 12 C 1136, 2012 U.S. Dist.
LEXIS 55485, at *3-7 (N.D. Ill. April 20, 2012) (granting
defendants leave to amend their notice of removal after the
30-day deadline, where the notice failed to allege the
citizenship of one of the defendants). Courts generally
permit parties to cure technical defects, but they do not
permit parties to assert new jurisdictional grounds after the
30-day deadline has passed. See Stein v. Sprint
Communications Co., L.P., 968 F.Supp. 371, 376 (N.D.
Ill. 1997) (after the 30-day period, the court denied
defendant's request to assert a new jurisdictional basis
as untimely); see also Tuholski v. Delavan Rescue Squad,
Inc., No. 13 C 1093, 2013 U.S. Dist. LEXIS 113114, at *
8 (N.D. Ill. Aug. 12, 2013).
the basis of federal jurisdiction has not changed; it is
still diversity jurisdiction. The Notice of Removal asserts
diversity as the basis for jurisdiction and alleges that none
of the defendants are citizens of the same state as the
Plaintiffs. Regarding Defendant Orton, the Notice states that
Orton is a foundation organized under the laws of the State
of Ohio. (Dkt. 1 ¶ 30) Plaintiffs identified Defendant
Orton as a trust, not a foundation, and noted that Orton
failed to identify the citizenship of the trustees. (Dkt. 34
at 3); Navarro Savings Ass'n v. Lee, 446 U.S.
458, 100 S.Ct. 1779, 64 L.E.2d 425 (1980); see also White
Pearl Inversiones S.A. v. Cemusa, Inc., 647 F.3d 684,
686 (7th Cir. 2011) (a trust's citizenship is determined
by that of its trustees). Defendant acknowledges that
Defendant Orton is, in fact, a trust and seeks to provide the
Court with additional facts regarding the trustees'
citizenship. Orton further argues that “any failure to
identify Orton as a trust is a mere technical defect that
does not affect this Court's jurisdiction, ” and
that the defect is ...