Maag defines 'after' for Judge Herndon in remand brief

Steve Korris Feb. 27, 2009, 5:13am


EAST ST. LOUIS – Now that Georgia trailer maker Cottrell Inc. has removed one of Thomas Maag's personal injury suits from Madison County to federal court, Maag insists Cottrell acted prematurely because he didn't serve a summons on the company.

In a Feb. 20 brief urging U.S. District Judge David Herndon to remand the suit, Maag wrote that federal law allows removal within 30 days after service of summons.

To make sure Herndon understood, Maag opened the brief by defining "after."

Herndon can grasp the meaning, but he might have trouble tracking the streams of consciousness that Maag poured into his brief.

Maag's client, John Sheffer of Tennessee, claims Cottrell caused an accident that injured him on his job at Smyrna, Tenn.

"Under the plain, literal, language of the statute, removal can only take place after service of formal summons," Maag wrote.

"Cottrell's only substantive argument to the contrary, is that they claim they can waive service, and that makes it all OK," he wrote.

"Notably, no file stamped copy of any waiver of service document was filed in Madison County, from which this case came, and thus, the case would have had to have been removed by Cottrell before its claim to have waived service, and thus, outside of the 30 day window allowed by plain language of the statute," he wrote.

He wrote that "if Cottrell has not been served, as it claims (and it probably wasn't), it could not have been removing this case within 30 days of receipt of the initial pleading through formal service, as it had not been served, and would have no way of knowing when it would be served in the future, if at all."

Maag denied Cottrell's assertion that he fraudulently joined businesses of the Cassens family of Edwardsville as defendants in order to defeat federal diversity jurisdiction.

He wrote that family member Lisa Shashek swore in an affidavit that Marysville Releasing didn't manufacture any tools but Kennith Leach of Tennessee swore in an affidavit that Marysville Releasing manufactured a hook Sheffer used.

He wrote that the affidavits created a genuine issue of fact and it wasn't appropriate for Herndon to decide which one to believe.

"Rather, that is the function of the jury, and since it is the function of the jury to determine that question, there is at least a reasonable possibility that the jury might believe Plaintiff and Mr. Leach, and thereby, determine the facts in Plaintiff's favor, and against Marysville Releasing, and therefore Marysville Releasing cannot be fraudulently joined, as Plaintiff has evidence of the truth of his claims, Defendants simply deny the truth of the claims, which, as the Court is well aware, defendants usually deny allegations of claims against them," he wrote.

"If this Court declines to remand this case, and this case proceeds to trial, and this matter is ultimately appealed, as many of these cases have been (usually resulting in an appellate ruling for the Plaintiff), there is a significant likelihood that, on appeal, either the appellate court, or the Supreme Court, will find removal was inappropriate, reverse and vacate all proceedings in this case, which will have the effect of causing this Court, the parties, and the attorneys, to have wasted significant time, resources, and money, on a case, that will be back at the pleading stage in state court," he wrote.

"On the other hand, if the appellate or Supreme Court were to issue an opinion upholding the removal, as well as countless other courts across the nation, and in this courthouse, the pain of having to draft, brief, and rule upon remand motions, the law would be clear, and everyone would know what it is," he wrote.

Cottrell doesn't want the case in Herndon's court any more than Maag does.

Cottrell has asked Herndon to transfer it to federal court in Tennessee.

On Feb. 24, the Cassens defendants joined Cottrell's transfer motion.

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