Cassens lawsuit remanded to Madison County

Steve Gonzalez Mar. 3, 2006, 7:13am

Gordon Broom

A federal judge has remanded a lawsuit against a local transportation business back to Madison County, stating that a defendant's removal of the case was improper.

United States Chief District Judge G. Patrick Murphy also ruled Feb. 17 that the Keith and Cindy Yount of Ohio are "entitled" to remand the case to Madison County.

The Younts filed a personal injury suit Jan. 26 against Lisa Shashek, Cassens & Sons, Cassens Corporation and "unknown defendants. Keith Yount, a truck driver employed by Cassens Transport, alleges that on March 11, 2004, he was performing his normal duties as a car hauler for his Illinois-based employer in Missouri when an idler broke at a defective weld. He alleges serious injuries.

Shashek removed the case to federal court Feb. 3.

Yount claims the rig lacked reasonably safe vehicle securement systems, the rigs were supplied with chains incapable of withstanding the stress or force inherent in the use of the rigs, and that the rigs lacked adequate warnings to sufficiently warn him of the defects.

In addition to "large sums of money" to pay for medical treatment, Yount claims his condition "is such that he may be forced to expend money for vocational rehab or convalescent care," according to the complaint.

Cindy Yount claims her husband's injuries have and may continue to deprive her of the support and services of her spouse.

The Younts are represented by Thomas Maag and Brian Wendler of Wendler and Ezra of Collinsville and Charles Armbruster of the Lakin Law Firm in Wood River.

The case was assigned to Circuit Judge Don Weber the day it was filed Jan. 26. But, Associate Judge Barbara Crowder, a candidate for circuit judge, signed Maag's emergency motion to shorten the time for defendants to answer discovery because the statute of limitations might expire March 11.

Maag attached a proposed order obligating Cassens Corp. and Cassens & Sons to answer interrogatories before March 11.

The proposed order identified Shashek as lead defendant but asked for nothing from her.

Maag attached interrogatories to the proposed order, asking defendants to identify the manufacturers of Cassens Transport tractor 4139 and trailer 4140, along with all persons and entities that have owned and leased the rig.

He asked for vehicle identification numbers of the tractor and the trailer.

He asked for names of the manufacturer and the distributor of the ratchet system and its component parts.

Eight days after Crowder signed the order, Shashek's attorney, Gordon Broom of Edwardsville, removed the case to U.S. District Court.

Broom wrote that no defendants had been served with the complaint.

He wrote that federal law required removal because, "there exists complete diversity between the parties in that Plaintiff is a citizen and no defendant is a citizen of Ohio."

He argued that federal law also required removal because the amount of damages in controversy exceeded $75,000.

On Feb. 14, Maag filed a motion to remand the case back to state court and award the Younts with costs and attorney fees claiming removal is, "completely and totally improper in this case, and is patently and totally objectively unreasonable."

"Defendants will likely argue, based on the tenor of their Notice of Removal, that an in-state defendant can remove a case before she is served, even if all defendants are citizens of the forum state," Maag also wrote.

He continued his motion, "Noticeably absent from the Notice of Removal is a citation to any case that so rules, and, candidly, Plaintiffs' counsel was unable to locate any such cases."

"Similarly, in this case, the "joined and served" language of section 1441(b), the mere failure to effect formal service of process on an in-state defendant prior to removal does not allow that defendant to defeat the prohibition on removal by an in-state defendant, just because that in-state defendant has not yet been formally served, and to do so would be to have the Court ignore the very defendant that removed the case.

"In addition, in light of the fact that it does not matter what combination of defendants is served, or what combination of defendants are not served, Defendant's argument yields a patently unreasonable result that no court has ever ruled is the law."

Maag also claimed that the defendants' failed to provide competent proof of the amount in controversy is in excess of $75,000 which would give the federal court jurisdiction.

"The complaint only requests relief "in excess of fifty thousand dollars, and the civil cover sheet signed by Attorney Broom lists, "excess of $50,000" as the demand," Maag argues.

"It is axiomatic that 'in excess of $50,000' is not the same thing as 'in excess of $75,000, exclusive of costs and interest', as, perhaps, this case is only a $60,000 case, or a $70,000 case."

Maag also argued the defendants' should pay for the costs and attorney fees associated with the removal.

He writes, "It is clear, this removal was made simply to harass the Plaintiffs, to try to force the expiration of the statute of limitations against a co-defendant, and not because of any good faith honest belief by Defendant that removal was proper."

In remanding the case back to Madison County, District Judge Murphy writes, "This case involves, at this point, only in-state defendants. To allow removal does not further the purpose of the removal statute but, rather, furthers the purpose of the forum defendant rule."

"The only out-of-state parties that could suffer prejudice are Plaintiffs, and they have chosen to proceed in state court. Removal was improper, and Plaintiffs are entitled to remand. Plaintiffs are not, however, entitled to recover their fees and costs."

On Feb. 20, Broom filed an appeal to the U.S. Court of Appeals for the 7th Circuit.

On Feb. 28, the 7th Circuit ordered the defendants to file a brief memorandum stating why their appeal should not be dismissed for lack of jurisdiction after the Younts filed a motion to dismiss the appeal for lack of appellate subject matter.

The Younts also filed motions for sanctions pursuant to Federal Rule of Appellate Procedure 38. Shashek and Cassens were given until March 14 to file their responses to the motion to dismiss and sanctions.

Meanwhile, since Murphy's remand order, the case has been chugging along in state court. On Feb. 21 the case was officially re-opened in Madison County.

The same day, the Younts filed a motion for a substitution of judge as a matter of right and submitted a proposed order for Weber to sign.

The defendants were officially served their summons by the Madison County Sheriff's Department on Feb. 16.

On Feb. 27, the Younts filed motions to compel and to amend their complaint. The defendants also filed motions for an extension to file their answer to the complaint.

On Feb, 28, the Younts filed their response in opposition to the defendants' motion for an extension.

On March 3, Weber set a hearing date of March 7, for a special setting at 1:30 p.m. to hear arguments on the substitution motion and set a hearing for March 24 to hear the motions to compel and amend the complaint.

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