Chicago Title & Trust Co. v. Whitney Stores, Inc.

• Decision Date: 26 April 1984
• Docket Number: No. 84 C 3401.,84 C 3401.
• Citation: 583 F. Supp. 575
• Court: U.S. District Court — Northern District of Illinois
• Parties: CHICAGO TITLE & TRUST CO. as Trustee under Trust No. 10-63-859, Plaintiff, v. WHITNEY STORES, INC., Defendant.

583 F. Supp. 575

CHICAGO TITLE & TRUST CO. as Trustee under Trust No. 10-63-859, Plaintiff, v. WHITNEY STORES, INC., Defendant.

No. 84 C 3401.

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

April 26, 1984.

Robert A. Kahn, Kahn & Kahn, Chicago, Ill., for plaintiff.

Donald G. Mulack and Philip V. Martino, Keck, Mahin & Cate, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

This Court is called on to decide the propriety of removal to federal court of this forcible entry and detainer action by Chicago Title & Trust Co. as trustee under a Trust Agreement dated February 14, 1974, and known as Trust No. 10-63-859 ("CT & T") against Whitney Stores, Inc. ("Whitney"). Whitney removed the case to federal court within 30 days of its commencement in state court pursuant to 28 U.S.C. §§ 1441 and 1446 ("Section 1446"), asserting federal jurisdiction under 28 U.S.C. § 1332 because of the parties' claimed diversity of citizenship. For the reasons stated in this memorandum opinion and order, CT & T's motion to remand to state court is granted.

Facts

Under Illinois practice as carried on in what used to be called the Municipal Court of Chicago and (since the constitutional restructuring of the state court system) is now the Municipal Division of the Circuit Court of Cook County, forcible detainer proceedings receive extraordinarily expedited treatment. Recovery of possession of the leased premises is of course the critical issue. Where there has been nonpayment of rent or abandonment of the premises (both are claimed here) and where commercial rather than residential property is involved (again that is the case here), a plaintiff really has a right to expect to go to trial on the designated return date, even though that may be only a few weeks after suit is filed.

In this case suit was filed March 22, 1984, summons was served on Whitney March 23 and the case was set for trial April 6. At that point Whitney exercised its right to ask for jury trial, and it then proceeded to get CT & T's agreement to continue the trial until April 23.¹ Thereafter Whitney removed the case to this Court, divesting the state court of jurisdiction and preventing the trial from going forward.

Applicable Remand Principles

CT & T asserts various grounds for remand. Most are unpersuasive, but because the sixth argument is meritorious this Court will confine its discussion to that contention. CT & T Pet. 2 claims:

6. That the action of defendant Whitney in appearing in the Circuit Court of Cook County and pleading therein constitutes an election by said defendant Whitney to proceed in the Circuit Court....

CT & T's general reference to Whitney's "appearing ... and pleading" may be construed, as in Baldwin v. Perdue, Inc., 451 F.Supp. 373, 375 (E.D.Va.1978), to put in issue all of Whitney's conduct in the lawsuit.

Whitney had indeed elected to proceed in state court by obtaining an agreed continuance of its trial without stating its intent to trigger removal in the interim. It is true a party's waiver of its right to remove generally depends on its intent to do so. See Carpenter v. Illinois Central Gulf Railroad Co., 524 F.Supp. 249, 251 (M.D.La. 1981), quoted in 1A Moore & Ringle, Moore's Federal Practice ¶ 0.1579, at 153 (2d ed. 1983). However an exception to that rule applies here, as expressed in Bedell v. H.R.C., Ltd., 522 F.Supp. 732, 737 (E.D.Ky.1981) (footnote to Moore's omitted):

It is clear, however, that an inadvertent waiver of the defendant's right to remove can occur by his taking certain acts in the state court that are deemed to constitute a submission to its jurisdiction.

Because under that exception waiver may occur inadvertently and as a result of defendant's actions, it is really more akin to estoppel than to waiver.

In that regard Moore's ¶ 0.1579, at 154-55 (footnotes omitted) discusses rules applicable when a case proceeds to trial before lapse of the 30-day period Section 1446(b) allows for removal:

Where the action becomes removable shortly before, at, or during the trial, the defendant may remove the case, but he must take prompt steps to do so, if his right is to be preserved; and, unless he does so, proceeding to or continuing with the trial constitutes a waiver of the right of removal, even though the thirty day period may not have elapsed.

Of course Moore's speaks in terms of a case filed more than 30 days before trial, but for which removal becomes available less than 30 days before trial. That focus is understandable because cases so rarely come to trial less than 30 days after filing. But if a case "becomes removable shortly before ... trial," it should not matter whether it becomes removable because of a change in the character of the action or has been removable from the very outset.

When removal becomes available as a case proceeds to trial, Waldron v. Skelly Oil Co., 101 F.Supp. 425 (E.D.Mo.1951) applies the general (albeit harsh) requirement that intention to remove be voiced immediately. There plaintiff's attorney dismissed all non-diverse defendants in his opening statement. At that point the remaining (diverse) defendant was actually held to have waived its right to remove because its attorneys did not interrupt the statement to ask for a recess so they could prepare a removal petition, but...