No. 98 C 262
June 28, 1999
MEMORANDUM OPINION AND ORDER
On December 11, 1997, plaintiffs Michael and Ellen Rubino sued defendants Keller Ladders, Inc. and Keller Industries in the circuit court of Cook County Illinois, alleging negligence and strict products liability arising from injuries resulting from Michael Rubino's use of an allegedly defective ladder. Defendants removed the case to this court on January 16, 1998, on the basis of complete diversity of citizenship. On March 16, 1998, this court granted plaintiffs' motion to amend their complaint adding Handy Andy Home Improvement Centers, Inc. ("Handy Andy"), from whom plaintiffs allegedly purchased the ladder, as an additional defendant. Because the addition of Handy Andy destroyed complete diversity, the court remanded the case to state court.
Defendants had contested plaintiff's motion, arguing that because plaintiffs knew the name of the ladder's manufacturer, Handy Andy would be subject to immediate dismissal under the Illinois Vendor Statute, 735 ILCS 5/2-621. That statute allows plaintiffs to sue a product distributor to obtain the name of the product manufacturer. Once the manufacturer is identified, the distributor is dismissed without prejudice. Because plaintiffs already had named the manufacturer, defendants argued that naming Handy Andy as an additional defendant served no purpose other than to defeat diversity jurisdiction. Under 28 U.S.C. § 1447 (e), this court had the option to deny joinder, or permit joinder and remand the action to the state court. Because under the Illinois Vender Statute any dismissal of Handy Andy would be without prejudice to adding Handy Andy again if discovery indicated that Handy Andy may be liable, the court granted plaintiff's motion and remanded the case. On March 29, 1999, the state court, as predicted by defendant, dismissed Handy Andy without prejudice. Plaintiff did not oppose Handy Andy's motion to dismiss.
On March 30, 1999, defendants filed a second notice of removal, again based on complete diversity. Plaintiffs have now moved to remand, arguing that the second removal was improper because it occurred over one year from commencement of the action.
28 U.S.C. § 1446 (b), provides that: "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by § 1332 of this title more than one year after commencement of the action."
Obviously, the one year time bar may lend itself to delaying tactics by a plaintiff determined to avoid federal court. Nevertheless, "[t]he statutory language is crystal-clear, and federal judges do not sit as superlegislatures to amend or repeal the work of Congress." Perhats Associates, Inc. v. Fasco Industries, Inc., 843 F. Supp. 424, 426 (N.D. Ill. 1994) (Shadur, J.). As noted by Judge Shadur, Perhats, 843 F. Supp. at 426 (quoting professor David Siegel's commentary on the 1988 revision to the statute), Congress fully recognized the risks built into such an unconditional time limitation, but nonetheless chose to enact the legislation in the current form:
The amendment puts a one-year cap on removal if the purported basis for the federal jurisdiction is the diversity of citizenship of the parties.
The result in a given case is made to depend on the procedural variations — and perhaps the procedural eccentricities — of the particular state's practice. The amendment may sometimes give too much control to the state court plaintiff who wants to resist a removal to the federal court at all costs.
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The one-year cutoff therefore has an anti-diversity ring to it. Congress acknowledged this, but called it a "modest curtailment."
In the instant case, defendants argue that because plaintiffs caused a delay in the proceedings by adding Handy Andy knowing that Handy Andy would be dismissed, plaintiff should be estopped from relying on the one year time bar. Because the time bar is procedural rather than jurisdictional, courts have held that the time bar can be waived. See Id. at 426; Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991). Because the bar is procedural, defendants argue that the bar is also subject to equitable defenses. Relying on Kinabrew v. Emco-Wheaton. Inc., 936 F. Supp. 351 (M.D. La. 1996), which held that a district court has the authority to apply equitable considerations to prevent a plaintiff from flagrant forum shopping, defendants argue that this court should allow removal beyond the one year limitation because plaintiff clearly added Handy Andy simply to destroy diversity. The Seventh Circuit has not yet addressed this issue. Although defendants have raised a persuasive argument, this court agrees with Judge Shadur that the plain wording of the time bar is absolute, and that Congress recognized that forum shopping such as plaintiffs have engaged in is an unfortunate but acceptable by-product of the rule. Accordingly because the notice of removal came over one year after the case was remanded, the motion to remand is granted.
As a final matter, plaintiffs have requested costs and attorneys' fees incurred as a result of the removal pursuant to 28 U.S.C. § 1447 (c). An award of fees and costs under this section is discretionary, and the courts have denied costs where the defendant presented a "substantial jurisdictional question."Turner v. Bell Federal Savings and Loan Association, 490 F. Supp. 104, 105 (N.D. Ill. 1980). See. e.g., Garbie v. Chrysler Corporation, 8 F. Supp.2d 814, 820-821 (N.D. Ill. 1998), Schultz v. Chrysler Corporation, 1996 WL 432400, *2 (N.D. Ill. 1996). Because defendant's motion to remand presented a substantial jurisdictional question, the court denies costs and attorneys' fees pursuant to § 1447.