Opinion
No. 04 C 3145.
July 29, 2004
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant's Motion to Alter or Amend Judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies Defendant's Motion in its entirety and awards Plaintiff costs and fees associated with defending the motion.
I. BACKGROUND
On July 8, 2004, this case was remanded back to state court because the Defendant, Niels Erik Hansen, did not timely file his notice of removal. At the time of the untimely removal, the Defendant had filed a special and limited appearance in state court for the purposes of quashing the service of process against him. The Plaintiff had obtained leave of the court to seek an alternative form of service because the Defendant was deliberately avoiding Plaintiff's efforts to obtain service. Defendant removed the case to this court the day before the state court was set to rule on the service issue.
Defendant received alternative service pursuant to the court order on February 17, 2004. This would have given him until March 18, 2004 to remove the case to federal court; Defendant did not remove the case until May 3, 2004. The removal was therefore untimely and the case was remanded back to state court.
II. DEFENDANT'S RULE 59 MOTION
Defendant now has filed a motion to alter or amend the order remanding the case to state court. Subsequent to the remand order, on July 20, the state court quashed the order granting the Plaintiff permission to obtain service through an alternative method. Defendant asserts that the Court should either vacate its remand order in its entirety because the service was faulty or vacate that portion of the order awarding Plaintiff costs and fees incurred in seeking the remand
As this Court noted in its order remanding the case to state court, the propriety of the service under state rules in this case did not alter the time for filing a notice of removal. "If it was clear from the state court complaint that the case was removable (a subject that will be addressed below), then the Defendant is confronted with the choice to either remove the case within thirty days to federal court or to fight the complaint (including the method of service) in state court." Order of July 8, 2004, at 4. The subsequent determination that the state court method of service was untimely provides no basis for this Court to vacate the order in its entirety.
Defendant alternatively moves this Court to vacate that portion of its order awarding Plaintiff costs and fees incurred in seeking the remand The state court ruling on the propriety of the alternative method of service is of no particular moment to the decision to award Plaintiff recovery of its costs and fees seeking the remand Defendant untimely and improperly filed a notice of removal and this Court awarded Plaintiff its costs and fees associated with seeking a remand Subsequent developments are completely irrelevant to this court.
Plaintiff urges the Court to award its fees and costs in defending against the instant motion. Since the removal remains improper and defending this Motion was part of Plaintiff's duties in obtaining the remand, the Court will additionally award Plaintiff its reasonable fees and costs associated with responding to this motion. Plaintiff will have until August 5, 2004 to submit a supplemental itemization of fees and costs. Defendant is given until August 13, 2004 to file detailed objections, if any, to Plaintiff's supplemental itemization of fees and costs.
Defendant is reminded that it has until July 30, 2004 to file its objections to the original itemization of fees and costs that Plaintiff submitted on July 22, 2004. If no objections to the original itemization is received by that date, the Defendant waives the right to make any such objections.