Rothner v. City of Chicago, 88 C 3403.

• Decision Date: 22 August 1988
• Docket Number: No. 88 C 3403.,88 C 3403.
• Parties: Eric ROTHNER, d/b/a Bell Vending and d/b/a Chicago Game Co., Plaintiff, v. CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

692 F. Supp. 916

Eric ROTHNER, d/b/a Bell Vending and d/b/a Chicago Game Co., Plaintiff, v. CITY OF CHICAGO, et al., Defendants.

No. 88 C 3403.

United States District Court, N.D. Illinois, E.D.

August 22, 1988.

Glenn Seiden, Glenn Seiden & Associates, Chicago, Ill., for plaintiff.

Judson Miner, Corp. Counsel, City of Chicago by William Mackin, Asst. Corp. Counsel, Chicago, Ill., for defendants.

ORDER

BUA, District Judge.

The plaintiff, Eric Rothner (Rothner), initiated a civil action in state court seeking to have the "Substitute Ordinance" amending Chapter 104.2 of the Municipal Code of the City of Chicago at Section 104.2-10 declared unconstitutional. Defendants City of Chicago, Mayor Eugene Sawyer, Superintendent of Police Leroy Martin, and their officers and agents (collectively the "City"), after receiving proper notice of this action, appeared in state court and vigorously opposed Rothner's motion for a temporary restraining order. After receiving argument from both sides, Judge Albert Green of the state court's Chancery Division declared the "Substitute Ordinance" facially defective and unenforceable. The judge issued a temporary restraining order ("TRO") restricting the City from enforcing the ordinance and scheduled a hearing on Rothner's motion for a preliminary injunction shortly after the TRO was set to expire. Thereafter, the City, instead of following the state court's order, filed a petition to remove this action to federal court pursuant to 28 U.S.C. § 1441.

Although Rothner acknowledges that federal question jurisdiction exists in the present case, Rothner urges this court to dismiss the City's petition for removal and remand the cause to state court. Rothner essentially argues that the City's acts of appearing in state court and defending his motion for a TRO constituted a clear waiver of the right to remove. This court agrees.

Section 1441 provides a defendant with the right to remove any civil action brought in a state court over which a district court of the United States has original jurisdiction. Although a petition meeting the statutory requirements may be timely filed, a district court may remand the action to the state court if, prior to seeking removal, the defendant demonstrates a clear intent to waive such right. Gore v. Stenson, 616 F.Supp. 895, 898 (D.C.Tex. 1984). This exception, however, is strictly construed. Actions such as appearing in state court, filing an answer, and defending a motion for a TRO have generally been found insufficient to demonstrate a clear intent to waive the right to remove. Kiddie Rides U.S.A., Inc. v. Elektro-Mobiltechnik GMBH, 579 F.Supp. 1476 (C.D. Ill.1984) (answer); Carpenter v. Illinois Cent. Gulf R.R., 524 F.Supp. 249, 251 (M.D.La.1981) (appearance); Beasley v. Union Pac. R.R., 497 F.Supp. 213, 216 (D.C.Neb.1980) (TRO).

Although cognizant of the aforementioned authority, this court is compelled to find the City's actions in the present case constituted a clear waiver of its right to remove. At all times prior to offering opposition to Rothner's motion, the City retained the right to remove the instant action to federal court. Such a pre-hearing filing would have deprived the state court of jurisdiction and placed Rothner's motion for preliminary relief before a judge of this district for resolution. Rather than following such a course, the City elected to defend Rothner's motion. It was only after receiving...