Murphy rejects 'fraudulent joinder' claim, remands Yount to Madison County

Steve Korris Jan. 4, 2007, 9:55am

U.S. District Judge Patrick Murphy has remanded to Madison County an Ohio man's personal injury suit against a Georgia company over an accident in Missouri.

Murphy ruled Dec. 7 that Ohio resident Keith Yount could pursue his claim in an Illinois court because he sued Illinois defendants along with one from Georgia.

Cottrell Inc., a Georgia trailer maker, had removed the suit to federal court in East St. Louis on grounds that Yount fraudulently joined the Illinois defendants.

Murphy detected no fraud in the joinder but he detected a defect in the removal.

He wrote, "In order to remove a case from state court to federal court, all defendants must either join in the removal or otherwise consent to removal."

In the absence of consent, he wrote, a party must explain why no one consented.

He wrote, "The Court views Cottrell's absurd allegations of fraudulent joinder as tantamount to a failure to explain why eleven of Cottrell's co-defendants have not consented to removal."

The suit bounces back to Circuit Judge Daniel Stack.

Attorney Jeffrey Wendler and the Lakin Law Firm filed the suit last January. Yount claimed he suffered an injury while working at Fenton, Missouri.

Wendler regularly represents truck drivers who claim they suffered injuries while loading automobiles on Cottrell trailers.

Wendler pursues claims against Cottrell in Madison County by suing Edwardsville auto dealer Cassens & Sons and other Cassens family businesses.

Although Charles Armbruster of the Lakin firm signed the complaint, attorney Thomas Maag brought it to the courthouse.

Maag also brought a motion Armbruster had signed for an emergency order requiring immediate answers from defendants.

Chief Judge Edward Ferguson assigned the case to Circuit Judge Don Weber, but Associate Judge Barbara Crowder signed the emergency order.

Neither Fergsun, Crowder, Maag, Wendler nor Armbruster ever explained how Maag obtained Crowder's signature that day.

Perhaps Maag foresaw the future. Today Crowder sits as circuit judger and Weber's brief judicial career has ended.

After the case reached Weber, Yount substituted him off the case.

In Illinois any party can substitute a judge once without cause, if the judge has made no substantial ruling.

The case passed to Stack, who voided Crowder's order.

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