Opinion
No. 00 C 8111.
January 2, 2001.
MEMORANDUM OPINION AND ORDER
Dr. Scott Cordes has filed a notice of removal ("Notice"), seeking to remove from the Circuit Court of Cook County to this District Court a medical malpractice action brought against Drs. Cordes and Daryl O'Connor by Patricia Petersen ("Petersen") as Special Administrator of the Estate of decedent James Petersen. Because the Notice is detective in one critical respect, this Court sua sponte remands this action to the state court of origin.
Cordes' attorney has used the old term "Petition for Removal" even though it has been well over a decade since 28 U.S.C. § 1446 ("Section 1446") was amended back in 1988 to change the label to "notice of removal" (the same legislation also changed some aspects of removal procedure). All references to other Title 28 provisions in this opinion will also take the form "Section — ."
Federal jurisdiction here is sought to be grounded on diversity of citizenship, and Dr. Cordes appears to have pushed the right buttons in that regard:
1. Dr. Cordes is an Illinois citizen, and he asserts on information and belief that Dr. O'Connor is too (Notice ¶ 2).
2. Notice ¶ 3 asserts — again on information and belief — that Petersen is a Wisconsin citizen.
3. In compliance with this District Court's LR 81.2(a), Dr. Cordes' counsel sought and received an admission from Petersen that she was claiming and would seek damages in excess of $75,000 (Notice Ex. B), information that had to be obtained because the Complaint had conformed to the state law prohibition against inclusion of an express ad damnum.
But where the Notice comes up fatally short is in its failure to be joined in or consented to by both defendants (see, e.g., Phoenix Container, L.P. v. Sokoloff, No. 00-1466, 2000 WL 1844588, at *1 (7th Cir. Dec. 18) and the century-old Supreme Court cases cited there for that proposition).
It is clear that Dr. Cordes has not been in touch with Dr. O'Connor at all (else he would not have had to speculate as to Dr. O'Connor's citizenship on information and belief). And because the 30-day clock as to Dr. Cordes did not begin to tick until December 14, 2000 (Notice ¶¶ 7 and 8), he cannot complain about a current remand under Sections 1446(b) and 1447(c) because he still has ample time to cure the flaw identified here if it is indeed curable, so that he could then file a valid Notice.
No comment is made here as to whether, if the 30-day clock has already run out as to Dr. O'Connor, removal could still be available to Dr. Cordes (see the discussion in Phoenix Container, 2000 WL 1844588, at *1). Because of the possibility that in that event such availability would not be the case, a current remand rather than a deferral to permit a possible cure appears the appropriate course to take.
Accordingly this action is ordered to be remanded to the Circuit Court of Cook County under Section 1447(c). And as permitted by this District Court's LR 81.2(b), the Clerk of this District Court is directed to mail the certified copy of the remand order forthwith.
Although this Court has accepted Cordes' "information and belief" statements for current purposes, the remand may also allow him to substitute fact for hypothesis in one or both instances during the limited time remaining on his 30-day clock. It should be said, however, that such substitution is not at all a necessary precondition to a valid and timely renewed effort at removal.