Maag accuses Cottrell of dirty tricks in removing suit to federal court

Steve Korris Dec. 11, 2008, 2:18am


EAST ST. LOUIS – Georgia trailer maker Cottrell improperly removed a Tennessee man's injury suit from Madison County to federal court, according to attorney Thomas Maag of Wendler Law in Edwardsville.

In a Dec. 4 remand motion, Maag denied Cottrell's charge that he fraudulently joined defendants to defeat federal diversity jurisdiction.

"If Cottrell is going to claim that certain plead facts are false, presumably it can provide some proof, an affidavit, something, to sustain that allegation," he wrote.

"By the same token, if Cottrell is going to argue that Plaintiff cannot state a cause of action against a defendant that would keep it out of federal court, again, presumably, Cottrell can provide some proof to sustain its allegations," he wrote.

Maag client John Sheffer sued Cottrell and other businesses in Madison County over an injury he claimed he suffered last year at Smyrna, Tenn.

Sheffer did not sue his employer, Cassens Transport of Edwardsville, but he sued three other businesses of the Cassens family.

Cottrell removed the suit to federal court in East St. Louis, claiming Sheffer sued the Cassens businesses without any possible cause of action against them.

Maag responded that, "Plaintiff is quite comfortable that a cause of action not only can be stated against these three defendants, it already has been stated."

He accused defendants of dirty tricks.

Cottrell removed the suit before the complaint was served on the company, he wrote.

"Cottrell will provide no evidence to the contrary," he wrote.

A defendant must file a removal notice within 30 days after receipt of a suit, he wrote.

"Thus, removal by Cottrell, in this case, prior to it being served, was procedurally improper, and this case must be remanded, as plaintiff is entitled to an order of remand if a case has a
procedural defect in the removal," he wrote.

The suit was served on Cassens and Sons and on Marysville Releasing, he wrote.

"In fact, it is virtually certain that one of the attorneys for defendants Cassens and Sons, or Maryville Releasing gave Cottrell's attorney a copy of the complaint, following formal service on them (or alternatively, Cottrell had its agents monitoring the state court waiting for actions to be filed)," he wrote.

He wrote that process server Amber Voyles tried to serve Cassens Corporation but a director of the corporation sent Voyles to an office at Staunton, in Macoupin County.

He called the office "a charade likely dreamed up by a retired law student to play venue games, by placing an empty office in a county where Cassens Corp. does nothing, and has no employees."

"Assuming for the sake of argument that the served Illinois defendants were, in fact, joined for the express purpose of keeping this case out of federal court (something plaintiff vehemently denies), the simple fact of the matter is that being that there is total diversity in this case, including from the challenged defendants, the concept of 'fraudulent joinder' simply does not apply, and the forum defendant rule mandates remand, as removal was improper," Maag wrote.

"If Cottrell provides competent proof and coherent argument as to why it contends that Cassens Corp, Cassens and Sons, and Marysville Releasing should be disregarded, plaintiff will provide reply argument, but, it is not plaintiff's, but rather, it is defendant's burden," he wrote.

U.S. District Judge William Stiehl presides over the case.

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