Opinion
No. 02 C 2585
April 15, 2002
MEMORANDUM ORDER
FFE Transportation Services, Inc. ("FFE") has filed what it labels "Defendant's Notice for Removal" ("Notice") to bring this action from the Circuit Court of Cook County to this federal court. Because FFE's counsel have failed to establish the requisite diversity of citizenship (the asserted basis for removal) and because the Notice is otherwise defective, this memorandum order is being issued sua sponte to remand this action for lack of subject matter jurisdiction.
As 28 U.S.C. § 1446 (a) and other portions of the removal statutes reflect, the correct term is really "notice of removal." FFE's counsel's mistake in that respect is no doubt attributable to the statutory change nearly 15 years ago from the old "petition for removal" label to the current term — a surmise that seems to be confirmed by the opening paragraph of the Notice, in which FFE's counsel mistakenly "petition for this action . . . to be removed . . . ." Incidentally, all further references to Title 28 provisions will simply take the form "Section — ."
In that respect, although Notice ¶ 5 properly identifies both of FFE's states of citizenship in accordance with Section 1332(c)(1), Notice ¶¶ 4 and 6 speak only of the residences and not the states ofcitizenship of plaintiff Helmut Judt and co-defendant Phillip Robertson ("Robertson"). As taught by Held v. Held, 137 F.3d 998, 1000 (7th Cir. 1998), quoting Guaranty Nat'l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996):
Of course, allegations of residence are insufficient to establish diversity jurisdiction. It is well-settled that "[w]hen the parties allege residence but not citizenship, the court must dismiss the suit."
In the instance of a removed action, of course, the appropriate order is not such a dismissal, but rather the remand of the action to the state court pursuant to Section 1447(c).
If what has been pointed out in the preceding paragraph were the only problematic aspect of the Notice, this Court would be disinclined to impose an additional $150 filing fee obligation on FFE, because it would seem likely that the just-identified defect may be curable (it is after all most common for an individual's states of residence and citizenship to coincide, though that is not always the case). In most cases, then, this Court tempers the Held-Guaranty Nat'l directive by granting a limited-time opportunity to file a curative submission. But in this instance FFE has committed still another error: It impermissibly acted alone, for the Notice has neither been joined in by Robertson nor has any explanation been given for his absence (see Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994)).
Accordingly, because from the flawed nature of the Notice "it appears that the district court lacks subject matter jurisdiction" (Section 1447(c)), and because here that detect is further exacerbated by FFE'S failure (albeit nonjurisdictional) to conform to the requirement of Section 1446(a) that all served defendants must join in any removal, this action is sua sponte remanded to the Circuit Court as directed by Section 1447(c). And as authorized by this District Court's LR 81.2 (b), the Clerk of Court is directed to mail the certified copy of the remand order forthwith.
Alternatively, a notice that provides an explanation of a defendant's excusable absence may do the job (see Roe).