Alemayehu v. Boeing Company, The

MOTION

N.D. Ill.June 18, 2010

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DAWIT ALEMAYEHU, as the Personal Representative of the Estate of GELILA GEDION, decendent, Case No. 1:10-cv-03147 Petitioner, Hon. Samuel Der-Yeghiayan v. THE BOEING COMPANY, a corporation Respondent. MOTION TO REMAND Petitioner, Dawit Alemayehu, as the Personal Representative of the Estate of Gelila Gedion, decendent (“Alemayehu”), by and through his attorneys, Korein Tillery LLC, respectfully moves this Court pursuant to 28 U.S.C. § 1447 to remand this cause of action to the Circuit Court of Cook County, Illinois, for the following reasons: 1. On March 30, 2010, Alemayehu filed a Verified Petition for Discovery Pursuant to Illinois Supreme Court Rule 224 (“Rule 224 Petition”) in the Circuit Court of Cook County, Law Division. A copy of Alemayehu’s Rule 224 Petition is attached as Exhibit A. 2. Respondent, The Boeing Company (“Boeing”), was served with process on April 26, 2010. 3. The Rule 224 Petition is an “independent action” filed “for the sole purpose of ascertaining the identity of one who may be responsible in damages” in connection with the January 25, 2010 crash of a Boeing 737 aircraft which was flying on a scheduled service from Beirut, Lebanon, to Addis Ababa, Ethiopia. Ill. Sup. Ct. R. 224(a)(1)(i). Case 1:10-cv-03147 Document 10 Filed 06/18/10 Page 1 of 4 2 4. To date, no information concerning any investigation of the crash of Flight 409 has been made available. Accordingly, the only way Alemayehu can identify the individuals or entities who may be liable to Alemayehu is to obtain the information requested in his Rule 224 Petition. 5. Alemayehu has not filed a formal complaint for damages against any party, but instead filed his Rule 224 Petition to identify those individuals or entities with “the potential for liability” so that he can “further define and narrow the universe of potential defendants” in this matter and avoid filing a frivolous lawsuit. Beale v. EdgeMark Financial Corp., 664 N.E.2d 302, 309 (Ill.App. 1 st Dist. 1996). 6. On May 21, 2010, Boeing filed its Notice of Removal of this case pursuant to 28 U.S.C. §§ 1369, 1441, and 1446. In its Notice of Removal, Boeing argues that removal is proper under Sections 1369 and 1441 because the events that underlie Alemayehu’s Rule 224 Petition concern a single air crash that involves at least 75 fatalities and minimal diversity is present. 7. Boeing’s Notice of Removal is improper because this Court does not have jurisdiction over Alemayehu’s Rule 224 Petition. As explained in detail in the accompanying Memorandum of Law in Support of Remand, Alemayehu’s Rule 224 Petition is not a “civil action” under Sections 1369 and 1441, but is merely “an independent action in discovery apart from any substantive lawsuit asserting a claim.” Diaz v. City of Chicago, 2009 WL 1034504 at *5 (N.D.Ill. April 14, 2009); see also Employers Insurance of Wausau v. Bodi-Wachs Aviation Insurance Agency, Inc., 39 F.3d 138 (7 th Cir. 1994) (holding that a Rule 224 petition does not amount to a claim for damages). Case 1:10-cv-03147 Document 10 Filed 06/18/10 Page 2 of 4 3 8. This Court should not permit Boeing to improperly remove Alemayehu’s Rule 224 Petition in an attempt to forum shop, and should remand this case to the Circuit Court of Cook County, Illinois. 9. Alemayehu has timely filed this Motion to Remand within thirty days of Boeing’s filing of its Notice of Removal. WHEREFORE, Petitioner respectfully requests this Court to: (a) Remand this case back to the Circuit Court of Cook County, Illinois; (b) Award Alemayehu his reasonable attorney fees, costs, and expenses incurred in conjunction with preparing this Motion to Remand and Memorandum of Law in support thereof; and (c) Grant any other relief this Court deems just and proper. Respectfully Submitted, KOREIN TILLERY LLC Dated: June 18, 2010 By: /s/ John A. Libra George A. Zelcs (IL Bar No. 3123738) John A. Libra (IL Bar No. 6286721) Korein Tillery LLC 205 N. Michigan Avenue - Suite 1950 Chicago, Illinois 60601-4269 Telephone: (312) 641-9760 Facsimile: (312) 641-9751 gzelcs@koreintillery.com jlibra@koreintillery.com Attorneys for Petitioner Case 1:10-cv-03147 Document 10 Filed 06/18/10 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on June 18, 2010, I filed the foregoing Motion to Remand using the Court’s CM/ECF system, which will send notification of such filing to the following: Bates McIntyre Larson Christopher B. Wilson Jonathan R. Buck PERKINS COIE LLP 131 South Dearborn Suite 1700 Chicago, IL 60603-5559 Tel.: (312) 324-8400 Fax: (312)324-9400 blarson@perkinscoie.com cwilson@perkinscoie.com jbuck@perkinscoie.com Bruce Campbell PERKINS COIE LLP 1201 Third Ave., Suite 4800 Seattle, WA 98101-3099 Tel.: (206) 359-8000 Fax: (206) 359-9000 bcampbell@perkinscoie.com Counsel for Defendant By: /s/ John A. Libra John A. Libra (IL Bar No. 6286721) Korein Tillery LLC 205 N. Michigan Avenue - Suite 1950 Chicago, Illinois 60601-4269 Telephone: (312) 641-9760 Facsimile: (312) 641-9751 jlibra@koreintillery.com Case 1:10-cv-03147 Document 10 Filed 06/18/10 Page 4 of 4