Gross v. Fca U.S. LLC, No. 17 C 4889

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtChief Judge Rubén Castillo
PartiesMAXIMILIAN I. GROSS, Plaintiff, v. FCA US LLC and ZACHARY M. NICHOLSON, Defendants.
Docket NumberNo. 17 C 4889
Decision Date07 December 2017


No. 17 C 4889


December 7, 2017

Chief Judge Rubén Castillo


Maximilian Gross ("Plaintiff") originally filed this suit in the Circuit Court of Cook County against Zachary Nicholson1 ("Nicholson") and FCA US LLC ("FCA," and collectively, "Defendants"), seeking damages for personal injuries he suffered as the result of a high-speed, single-vehicle automobile accident. (R. 1-2, Am. Compl.) FCA removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (R. 1, Notice of Removal.) Presently before the Court are dual motions by Plaintiff and Nicholson to remand pursuant to 28 U.S.C. § 1447(c). (R. 11, Pl.'s Mot.; R. 15, Def.'s Mot.) For the reasons stated below, both motions are granted.


Plaintiff and Nicholson are good friends who, after receiving leave from the Army in March 2016, drove together to Elgin, Illinois, to visit family and friends. (R. 1-2, Am. Compl. ¶¶ 8-9.) Nicholson was driving Plaintiff's 2009 Dodge Caliber along Route 41 in Indiana, with Plaintiff in the passenger seat, when the vehicle veered off the road and rolled over, causing

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significant damage to the car's roof structure. (Id. ¶¶ 8-14.) The accident left Plaintiff with severe, permanent, and progressive injuries, including quadriplegia and brain trauma. (Id.)

On August 2, 2016, Plaintiff filed suit in the Circuit Court of Cook County, asserting negligence and product liability claims against FCA related to the 2009 Dodge Caliber,2 and a negligence claim against Nicholson. (R. 1-1, Compl. ¶¶ 18-50.) In the complaint, Plaintiff alleged that both he and Nicholson were citizens of Illinois, and that FCA was a citizen of England and the Netherlands. (Id. ¶¶ 1-2, 4.)

On June 29, 2017, FCA removed the case to this Court, asserting subject-matter jurisdiction based on diversity of citizenship. (R. 1, Notice of Removal ¶ 7.) FCA contended in its notice of removal that "Nicholson does not have a legitimate basis for Illinois citizenship" and that he was instead a citizen of either North Dakota or Kentucky, rendering diversity complete. (Id. ¶ 5.) On July 27, 2017, both Plaintiff and Nicholson moved to remand the case. (R. 11, Pl.'s Mot.; R. 15, Def.'s Mot.)

In their motions to remand, Plaintiff and Nicholson both argue that FCA's removal is procedurally defective because Nicholson did not consent to removal. (R. 12, Pl.'s Mem. at 5, 6-10; R. 16, Def.'s Mem. at 11-13.) Plaintiff and Nicholson both argue that complete diversity, as required under 28 U.S.C. § 1332(a), is lacking because Nicholson was a citizen of Illinois at the time the complaint was filed. (R. 12, Pl.'s Mem. at 6, 11-14; R. 16, Def.'s Mem. at 7-11.) Separately, Nicholson contends that the case must be remanded because FCA's removal was untimely under 28 U.S.C. § 1446(b)(3). (R. 16, Def.'s Mem. at 13-14.) Nicholson argues that FCA filed its notice of removal more than 30 days after receiving documents that would have alerted it that the case was removable. (Id.) Last, Plaintiff and Nicholson both argue that 28

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U.S.C. § 1441(b)(2) bars removal because, under a proper citizenship analysis, Nicholson is a forum defendant. (R. 12, Pl.'s Mem. at 6, 11-14; R. 16, Def.'s Mem. at 11.)


A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). In a case that has been removed, a plaintiff may file "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction . . . within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c). "In considering a motion for remand, the court must examine the plaintiff['s] complaint at the time of the defendant's removal and assume the truth of all factual allegations contained within the original complaint." Scouten v. MNL-FTS, LLC, 708 F. Supp. 2d 729, 731 (N.D. Ill. 2010) (citation omitted). The removing party—here, FCA—bears the burden of establishing the propriety of removal, and any doubts concerning removal should be "resolved in favor of the plaintiff's choice of forum in state court." Morris v. Nuzzo, 718 F.3d 660, 668 (7th Cir. 2013); see also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009) ("[F]ederal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court.").


I. Timeliness of Removal

The Court first addresses Nicholson's argument that removal was untimely under 28 U.S.C. § 1446. Section 1446 provides that a notice of removal must be filed "within 30 days after the receipt by the defendant . . . of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C § 1446(b)(1). However, "if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after

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receipt by the defendant . . . of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is . . . or has become removable." 28 U.S.C. § 1446(b)(3). Nicholson does not contend that the case as stated by the initial complaint was removable; the question is only whether removal was timely under Section 1446(b)(3).

FCA contends that removal was timely because it filed the notice of removal within 30 days of receiving a transcript of Nicholson's deposition.3 (R. 1, Notice of Removal ¶ 8.) FCA asserts that Nicholson's deposition was the first time it ascertained that the case was removable, and that it timely removed the case within 30 days of receiving the deposition transcript.4 (R. 27, Def.'s Resp. at 15.) Nicholson counters that removal was untimely because discovery produced long before his deposition provided much of the information on which FCA relies to establish federal jurisdiction. (R. 16, Def.'s Mem. at 13-14.) Specifically, Nicholson points out that the police report filed after the accident listed a North Dakota address for him and showed that he possessed a North Dakota driver's license at the time. (Id.) Nicholson also asserts that documents produced before his deposition showed that he moved to Chicago and obtained an Illinois driver's license after the accident, but shortly before Plaintiff filed suit. (Id.) Nicholson contends that the 30-day removal clock began well before his deposition, and that his deposition transcript was not a paper "from which it may first be ascertained" that the case was removable. See 28 U.S.C. § 1446(b)(3) (emphasis added).

To trigger the 30-day removal clock under Section 1446(b)(3), the defendant must receive a pleading or other litigation paper that "affirmatively and unambiguously reveals that

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the predicates for removal are present." Walker v. Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013). "[T]he timeliness inquiry is limited to . . . examining [the] contents of the clock-triggering pleading or other litigation paper; the question is whether that document, on its face or in combination with earlier-filed pleadings, provides specific and unambiguous notice that the case satisfies federal jurisdictional requirements and therefore is removable." Id. at 825. "This bright-line rule promotes clarity and ease of administration for the courts, discourages evasive or ambiguous statements by plaintiffs in their pleadings and other litigation papers, and reduces guesswork and wasteful protective removals by defendants." Id. at 824. It is important to note, however, that "[t]he moment a case becomes removable and the moment the 30-day removal clock beings to run 'are not two sides of the same coin.'" Id. (citation omitted). In other words, a case may become removable to federal court without the 30-day clock ever being triggered. See id. at 825 ("The earliest possible trigger for the removal clock was [plaintiff's] response to [defendant's] requests for admission seeking formal clarification of the theory of damages. . . . Even that document, however, did not affirmatively specify a damages figure . . . . So the removal clock never actually started to run."); Hostetler v. Johnson Controls, Inc., No. 3:15-CV-226 JD, 2016 WL 3662263, at *4 n.2 (N.D. Ind. July 11, 2016) ("The removal clocks only set deadlines, they do not create exclusive windows within which a case must be removed, so a defendant can remove a case even if the removal clocks never begin.").

The Court concludes that FCA's removal was not untimely because the 30-day removal clock under Section 1446(b)(3) never started. FCA asserts subject-matter jurisdiction in this Court based on diversity of citizenship, claiming that diversity exists because Nicholson was in

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fact a citizen of North Dakota,5 not Illinois, at the time the suit was filed. (R. 1, Notice of Removal ¶¶ 5-6.) Nicholson disputes that his deposition was the first time FCA could have ascertained his North Dakota citizenship. However, none of the pre-deposition discovery materials cited by Nicholson affirmatively and unambiguously revealed that he was a citizen of North Dakota at the time this suit was commenced. Not even Nicholson's deposition affirmatively and unambiguously revealed this. The 30-day removal clock therefore never started to run. See Walker, 727 F.3d at 824-25.

Though the police report cited by Nicholson lists a North Dakota address for him and indicates that he held a North Dakota driver's license at the time of the accident, (R. 1-8, Crash Report at 4), this does not affirmatively and unambiguously reveal that he was a citizen of North Dakota. "Citizenship depends not on residence but on domicile, which means the place where a person intends to live in the long ran." RTP LLC v. ORIX Real Estate Capital, Inc., 827 F.3d 689, 692 (7th Cir....

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