Fellhauer v. City of Geneva, 87C2360.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation673 F. Supp. 1445
Docket NumberNo. 87C2360.,87C2360.
PartiesP. Reginald FELLHAUER, Plaintiff, v. The CITY OF GENEVA, a municipal corporation, and Richard Lewis, Individually, and in his official capacity as Mayor of the City of Geneva, Defendants.
Decision Date28 October 1987

Steven M. Cooper, Richard L. Cooper, Geneva, Ill., for plaintiff.

Joseph J. Hahn, Arvey, Hodes, Costello & Burman, Chicago, Ill., James R. Schirott, Charles E. Hervas, James G. Sotos, Frank J. Bochte, John Pankau, Jr., Schirott & Associates, Itaskca, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ZAGEL, District Judge.

The plaintiff, P. Reginald Fellhauer ("Fellhauer"), filed this action in the Illinois circuit court in Kane County, alleging that the defendants, the City of Geneva ("City") and Richard Lewis ("Lewis"), the City's mayor, violated federal and state law by removing him from his position as the City's Director of Electrical Department. Lewis subsequently petitioned to remove the case to this court pursuant to 28 U.S.C. sec. 1441(b)1, but the City did not join in the petition. Before the court are Fellhauer's motion to remand this action to the Illinois circuit court and Lewis's motion for leave to amend his petition for removal. For the reasons set forth below, we grant Fellhauer's motion to remand this action, and we deny Lewis's motion for leave to file an amended petition.

I. FACTS

The essential facts for purposes of the pending motions are as follows. On February 13, 1987, Fellhauer filed a complaint2 in the Illinois circuit court in Kane County alleging that the City and Lewis illegally had removed him from his position as the City's Director of Electrical Department. Counts IV and V of Fellhauer's Complaint allege violations of 42 U.S.C. sec. 1983 against the respective defendants. On March 10, 1987, based on these federal claims, Lewis removed the entire case to this court. See sec. 1446(b). The City, however, did not join in or otherwise consent to Lewis's petition for removal, and the petition failed to provide any explanation of the City's failure to do so.

The very next day, on March 11th, Lewis filed a motion, to which Fellhauer agreed without objection, to enlarge the time within which he would answer or otherwise plead to Fellhauer's complaint. About two weeks later, on March 27th, Lewis filed another motion; this one requesting leave to file a brief in excess of 15 pages. Fellhauer again agreed without objection.

On March 31st, the City, still not having joined in or consented to the petition for removal, filed an answer to Fellhauer's complaint and a motion for summary judgment and supporting memorandum. Neither the answer nor the summary judgment motion contained any indication that the City joined in or consented to the removal. On April 1st, Lewis moved to dismiss the complaint. Fellhauer requested that the court stay briefing on the defendants' motions until the court ruled on his motion for remand. The court denied his request for a stay,3 and all of the motions, including Fellhauer's motion to remand, which he filed on April 10th, are now fully briefed.

II. DISCUSSION

A federal court's jurisdiction under the removal statutes constitutes an infringement upon state sovereignty. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). "Consequently, the statutory provisions regulating removal must be strictly applied. A federal court should not extend its jurisdiction beyond the boundaries drawn by those provisions." Mason v. IBM, 543 F.Supp. 444, 445 (M.D.N.C.1982); see also Adams v. Aero Services International, Inc., 657 F.Supp. 519, 521 (E.D.Va. 1987); ANR Pipeline Co. v. Conoco, Inc., 646 F.Supp. 439, 442 (W.D.Mich.1986). It follows, then, that federal jurisdiction over cases removed from state court should be rejected where the propriety of removal is doubtful. Mason, 543 F.Supp. at 446 n. 3; Zack Co. v. Howard, 658 F.Supp. 73, 76 (N.D.Ill.1987). The party petitioning for removal bears the burden of establishing compliance with the removal statute's requirements. Adams, 657 F.Supp. at 521; see also Hardesty v. General Foods Corp., 608 F.Supp. 992, 993 (N.D.Ill.1985); ANR Pipeline, 646 F.Supp. at 442.

In order for an action to be properly removed from state court to federal court, all defendants must consent to it "within thirty days after the receipt by the defendant * * * of the copy of the initial pleading" containing the removable claim. Sec. 1446(b).4 Northern Illinois Gas v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir. 1982); Hardesty, 608 F.Supp. at 993. This means that each defendant must communicate his consent to the court, either orally or in writing, within the thirty-day period.5 See, e.g., Clyde v. National Data Corp., 609 F.Supp. 216, 218 (N.D.Ga.1985); Knowles v. Hertz Equipment Rental Co., 657 F.Supp. 109, 110 (S.D.Fla.1987).

The thirty-day requirement is not a jurisdictional limitation, (see Clyde, 609 F.Supp. at 219; Knowles, 657 F.Supp. at 110), and therefore a plaintiff may waive or be estopped from asserting this objection. See Schoonover v. West Amer. Ins. Co., 665 F.Supp. 511, 514 (S.D.Miss.1987). Nevertheless, the time limitation is mandatory and must be strictly construed. Douglass v. Weyerhaeuser Co., 662 F.Supp. 147, 149 (C.D.Cal.1987); Commonwealth of Puerto Rico v. Euro Pacific Bank Ltd., 661 F.Supp. 1082, 1083 (D.P.R. 1987); Greising v. C.P. Chemical Co., Inc., 646 F.Supp. 553, 554 (D.Minn.1986). Accordingly, if all defendants do not consent to removal within the thirty-day period, "the district court shall remand the case * * *." Sec. 1447(c). See also Adams, 657 F.Supp. at 521; Fields v. Reichenberg, 643 F.Supp. 777, 778 (N.D.Ill.1986).

In this case, it is undisputed that the City did not communicate its consent to removal to the court within the requisite thirty-day period. In the face of this seemingly fatal flaw, Lewis contends that we should not remand his case for no less than four reasons: first, the City communicated its consent to removal to Lewis prior to the date upon which the action was removed; second, Fellhauer has waived his right to object to the removal as improper; third, Fellhauer is estopped from objecting by his post-removal conduct; and finally, the defect is merely "technical", and therefore Lewis should be allowed to "cure" it by amending the petition to reflect the City's consent. We reject each of these arguments.

A. The City's Consent to Lewis

Lewis first asserts that "although the City had not separately removed nor previously consented in writing to * * * Lewis's petition, the City had in a telephone conversation with Lewis * * * prior to the filing of the petition verbally consented to the removal." Lewis Resp. at 1. This argument has been flatly rejected by several courts, (see, e.g., Mason v. IBM, 543 F.Supp. 444 (M.D.N.C.1982); Clyde v. National Data Corp., 609 F.Supp. 216 (N.D.Ga.1985)), and we now join them. The removal statutes require that all defendants communicate their consent to the court—not to one another. To adopt Lewis's reasoning would emasculate the mandatory timeliness requirement in removal actions involving multiple defendants, and would result in greater infringements on state sovereignty by the federal courts. Such a result, as we make clear in section C infra, will not be effected by this court absent compelling justification, and Lewis has not and cannot provide such justification here.

B. Waiver and Estoppel

Lewis next argues that Fellhauer, by "assenting" to certain "procedural matters" following removal, has waived his right to object to removal. Waiver, of course, involves the intentional relinquishment of a known right, either expressly or by conduct inconsistent with an intent to enforce that right. J.H. Cohn & Co. v. American Appraisal Assoc., Inc., 628 F.2d 994, 1000 (7th Cir.1980). In the removal context, waiver consists of "affirmative conduct or unequivocal assent of a sort which would render it offensive to fundamental principles of fairness to remand." Maybruck v. Haim, 290 F.Supp. 721, 724 (S.D.N.Y.1968); accord Clyde, 609 F.Supp. at 219.

In support of his contention that Fellhauer has waived his right to object, Lewis cites Harris v. Edward Hyman Co., 664 F.2d 943 (5th Cir.1981). In Harris, the plaintiff sued her employer (Hyman) and her union in state court seeking to enforce the terms of a collective bargaining agreement. Hyman (after the thirty-day period had elapsed) petitioned to remove the case to federal court. The union, however, did not join in Hyman's petition or otherwise notify the court of its consent to the removal. Following removal, Harris served discovery requests on both defendants and also responded to discovery requests Hyman had served upon her. Harris did not object to the union's failure to consent to the removal until 76 days after the case had been removed. On this record, the Fifth Circuit held that Harris had waived her right to object to the removal.

We believe that Harris is easily distinguished from the present case. Unlike Harris, Fellhauer has not initiated any action, other than filing his motion for remand, in this court.6 It is true that Fellhauer's counsel extended professional courtesies to Lewis's counsel following the removal of this action by agreeing to Lewis's request for an extension of time within which to file a responsive pleading and his request to file a brief in excess of fifteen pages. But we do not believe that these actions, simple responses to requests of a purely procedural nature7, constitute affirmative conduct or unequivocal assent of the "sort which would render it offensive to fundamental principles of fairness to remand."

Lewis makes the closely related argument that Fellhauer is estopped from objecting to the removal because both Lewis and the City have prepared and filed extensive motions in this court "in reasonable reliance that Fellhauer, by agreeing to the...

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