Terminix suit removed to federal court

Steve Gonzalez Mar. 5, 2007, 2:18pm

Dawn Sallerson

Attorneys for Terminix and The Service Master Company removed a Madison County class action suit to federal court on March 2, citing the Class Action Fairness Act of 2005 (CAFA).

Plaintiff Milton Gerstenecker claims the defendants violated the Illinois Consumer Fraud and Deceptive Practices Act by concealing that they failed to provide proper termite services.

He is represented by Elizabeth Heller and W. Stan Faulkner of the Goldenberg firm in Edwardsville, Christian Hartley of Charleston S.C. and Tom Campbell of Birmingham, Ala.

Gerstenecker claims that Terminix was uniformly obligated to provide services to protect homes from termite infestation through assuring the effective application and maintenance of chemical barriers in the soil under and around the foundation of his property.

"Because plaintiff filed his class action complaint in state court on December 29, 2006, the action was commenced after CAFA's effective date," Dawn Sallerson of Hinshaw and Culbertson of Belleville wrote.

"Accordingly, removal is proper under CAFA so long as any potential class member is diverse from any defendant, the amount in controversy exceeds CAFA's aggregate monetary jurisdiction threshold and the putative class action has one hundred or more class members," she wrote.

Sallerson claims there is at least minimal diversity between the defendant Terminix which is a citizen of the states of Delaware and Tennessee and the named plaintiff who is a citizen of the state of Illinois and any putative class members who may be citizens of Illinois.

She also claims despite the case being an "Illinois only" class action, the amount in controversy for Gerstenecker and the putative class members exceeds CAFA's $5 million aggregate jurisdictional threshold.

"Since there are currently 28,872 customers who have termite contracts for properties located in Illinois who potentially may be class members should a class ever be certified in this matter, CAFA's jurisdictional threshold would be met if those individuals were each awarded $174 in any type of the various forms of damages which plaintiff seeks on behalf of himself and the class," Sallerson wrote.

Gerstenecker also claims Terminix failed to properly treat or repair his property after termite damage was discovered and claims the company created a scheme and system which has promoted and led to widespread negligence and recklessness and wantonness.

According to the suit, Terminix is the leading pest control company in the country and has more than 250 office locations with more than 8600 employees generating sales in excess of $990 million.

Gerstenecker claims Madison County is the proper jurisdiction for his class action because the defendants are doing business in Illinois by contracting with Illinois residents and committing torts in Illinois, including Madison County.

"In any event, this class action is one in which two-thirds or more of the proposed class and a primary defendant are citizens of Illinois requiring federal courts to decline jurisdiction," the complaint states.

According to the complaint, Terminix is for all legal and practicable purposes a mere department of ServiceMaster.

"ServiceMaster controlled and directed the conduct and omissions of Terminix," the complaint states.

Sallerson claims Terminix and ServiceMaster are separate and distinct legal entities with separate boards of directors, separate officers, separate record keeping systems and separate executive officers.

The case was originally assigned to District Judge William Stiehl, but he recused himself.

The case is now assigned to Judge Michael Reagan.

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