879 F.2d 1402 (7th Cir. 1989), 88-1999, Rothner v. City of Chicago

Docket Nº:88-1999, 88-2690.
Citation:879 F.2d 1402
Party Name:Eric ROTHNER d/b/a Chicago Game Co., and d/b/a Bell Vending, Inc., Plaintiff-Appellee, v. CITY OF CHICAGO, a municipal Corporation, Defendant-Appellant.
Case Date:July 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1402

879 F.2d 1402 (7th Cir. 1989)

Eric ROTHNER d/b/a Chicago Game Co., and d/b/a Bell Vending,

Inc., Plaintiff-Appellee,

v.

CITY OF CHICAGO, a municipal Corporation, Defendant-Appellant.

Nos. 88-1999, 88-2690.

United States Court of Appeals, Seventh Circuit

July 5, 1989

Argued Jan. 12, 1989.

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Kenneth Rosenburg, Lincolnwood, Ill., James A. Graham, Mayer Brown & Platt, Glenn Seiden, Seiden & Associates, Chicago, Ill., for Eric Rothner.

Judson H. Miner, Corporation Counsel, Ruth M. Moscovitch, Asst. Corporation Counsel, William B. Mackin, Jeffrey P. Smith, Office of the Corporation Counsel, Chicago, Ill., for City of Chicago.

Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges. [*]

FLAUM, Circuit Judge.

These consolidated appeals, both brought by the City of Chicago, raise two questions: (1) whether an order remanding a removed case to state court on the ground that the defendant waived the right to remove prior to the running of the thirty-day time period for removal by participating in state court proceedings is reviewable under Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); and (2) whether a temporary restraining order issued by the state court prior to removal is subject to the time limitations imposed by Fed.R.Civ.P. 65(b).

I.

On March 20, 1988, Eric Rothner, a vendor and distributor of video-game machines and the owner of a video-game arcade, filed suit in state court against the City of Chicago, seeking to enjoin enforcement of the following ordinance, claiming that it violates his constitutional rights:

No person, firm, corporation, organization, or other legal entity shall permit, and it shall be unlawful for, any person under seventeen years of age to operate any automatic amusement device, except upon the premises of the city airports, between the hours of 8:00 a.m. and 3:00 p.m. on days in which the city's public schools are in session.

Chicago Municipal Code Sec. 104.2-10.

On April 14, 1988, before the City had answered the complaint, Rothner filed an emergency motion for a temporary restraining order ("TRO") which was heard on that day by Judge Green of the Circuit Court of Cook County. The City received less than two hours' notice prior to the hearing. An attorney from the Corporation Counsel's office appeared in court, stating that he had received the papers "a few minutes ago." Judge Green then stated that he had "never seen [this case] before." After a few moments' discussion concerning notice, Judge Green asked the City's attorney "why I shouldn't issue [a TRO]." The following colloquy ensued:

MR. MACKIN (the City's attorney): Well, your Honor, I think on its face the ordinance is a legitimate exercise of the city's police power to regulate a legitimate need.

THE COURT: Are you collecting fees on it, on the machines? Are you taking the full license fees?

MR. MACKIN: I personally don't know.

THE COURT: You sure do. Let the record reflect that you do. I don't live in a vacuum. You collect the fees. I know what the City Counsel is attempting to achieve.... Why don't

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you stop the kids from taking the CTA out to O'Hare Field and playing the machines out there between the hours of 8:00 a.m. and 3:00 p.m.?

Based on those comments--and without hearing any argument from Rothner's attorney, nor taking any evidence, nor making any findings--Judge Green immediately and summarily ruled that the ordinance was "facially defective," "unenforceable," and "vague," and issued a handwritten order that, in effect, amounted to a grant of Rothner's motion for a TRO. The order stated "[t]hat all enforcement of this ordinance 104.2-10 are [sic] stayed until a hearing is held on May 12, 1988 at 2:15 PM."

On April 20, 1988, the City removed the case to federal court. Shortly thereafter, the City twice moved to dissolve Judge Green's "stay" of enforcement, and Rothner moved to remand the case to state court. At a hearing on April 26, the district judge summarily denied the City's first motion and stated, without explanation or findings, that the stay would "remain in effect pending determination of the motion" to remand. With regard to that motion, the district judge commented, "Why can't state courts decide Constitutional questions?" On May 26, the City filed a second motion to dissolve the stay. The district judge refused to act on this motion and apparently considered the stay to remain in effect, even though it had expired by its own terms on May 12. The City filed appeal No. 88-1999 from the district court's refusal to dissolve the stay.

Four months later, the district judge filed a written opinion granting Rothner's motion to remand, finding that the City had waived its right to remove by appearing in state court to oppose the motion for a TRO. 692 F.Supp. 916. The district judge expansively characterized the hearing before Judge Green as follows:

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 ordinance] facially defective and unenforceable. (emphasis added).

The district judge acknowledged that the City had complied with all of the statutory requirements for removal, including timely filing of its petition. The judge also acknowledged the long-settled common law rule that opposing a motion for a temporary restraining order does not waive the right to remove. Nevertheless, because the district judge believed that the City's motive for removing the case to federal court was improper, the court held that the City had waived its right to remove. The strong tone of the court's opinion evidences the district judge's animus toward the City's attempt to remove. The court wrote:

At all times prior to offering opposition to Rothner's motion, the City retained the right to remove the instant action to federal court.... Rather than following such a course, the City elected to defend Rothner's motion. It was only after receiving [an] adverse ruling and determining that Judge Green's opinion left little hope of ultimate success that the City filed its removal petition. The City asserts that its policy is to litigate all constitutional cases in federal court. One wonders, however, whether the city would be before this court had it succeeded in defeating Rothner's motion before Judge Green.

The thought that Congress could have intended litigants to use Sec. 1441 to "test the waters" in state court before deciding whether to exercise their right to remove is simply absurd. Under such a system, a defendant, after electing to defend a removable matter in state court, is able to dissolve any adverse orders of preliminary relief by simply filing a petition to remove. Thereafter, to preserve the relief accorded by state court, a plaintiff is required to persuade a second judicial officer of his position. Thus, this practice allows a defendant to shop from

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forum to forum until receiving a favorable result.

Although other courts have found that opposing a motion for preliminary relief does not effectuate waiver of the right to remove, the facts in the instant action dictate a different result. Here, the City's established policy is to "litigate all constitutional matters in federal court." Pursuant to this policy, the City immediately removes cases involving constitutional issues to ensure all matters are litigated before federal rather than state judges. The City's actions in the present case reveal a marked departure from this practice. Instead of removing the instant action, the City elected to appear in state court and oppose the motion for preliminary relief. Viewed in light of its established policy, the City's willingness to litigate the challenged ordinance's constitutionality before Judge Green clearly demonstrates an intent to waive the right to remove. The City's recently filed petition to remove this case is nothing more than a poorly disguised attempt to undermine the power of the state court to enforce its order of preliminary relief. This attempted abuse of Sec. 1441 will not be tolerated by this court. Thus, Rothner's motion for an order remanding the cause to state court is granted.

The City filed appeal No. 88-2690 from the remand order, which the district court stayed pending our decision. Unless we reverse the order remanding the case, the appeal from the refusal to dissolve Judge Green's stay is moot, for the case would then be under the jurisdiction of the state court. Thus, we begin with the appeal from the remand, which raises the most difficult issue in the case: whether we have jurisdiction to review an order remanding a case to state court on the ground that the defendant waived the right to remove prior to the running of the thirty-day time period for removal.

II.

We initially note that the removal and remand in this case are governed by, and all citations are to, the provisions of the removal statutes as they appear in the 1982 edition of the United States Code. 28 U.S.C. Secs. 1441 et seq. The recent revisions to the removal statutes effected by the Judicial Improvements and Access to Justice Act, while instructive in our analysis, are not at issue. We also note that since those revisions were enacted on November 19, 1988, this may be one of the last cases to be decided under the former statutes.

Our decision as to the reviewability and propriety of the remand order is governed by the Supreme Court's decisions in Thermtron...

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