Cottrell relies on Stack's decision to remove personal injury case

By Steve Korris | Oct 5, 2006

Georgia trailer maker Cottrell Inc. removed a personal injury suit from Madison County Circuit Court to U.S. District Court in East St. Louis Sept. 29, claiming that attorneys for plaintiff Keith Yount of Ohio fraudulently joined Illinois defendants to the suit.

Cottrell relied on a decision of Madison County Circuit Judge Daniel Stack, who dismissed Edwardsville auto dealer Cassens & Sons from the suit.

At an Aug. 29 hearing Stack criticized attorney Brian Wendler of Collinsville for repeatedly naming Cassens & Sons as a defendant in personal injury suits.

Wendler specializes in representing truck drivers who haul cars. His suits claim that drivers suffer injuries due to dangerous equipment.

He obtains clients through referrals from the Teamsters Union.

In the Yount case Wendler tried to remain in the background.

Attorneys Charles Armbruster of the Lakin Law Firm and Thomas Maag wrote the complaint. Maag worked for the Lakin firm before teaming with Wendler.

Armbruster and Maag named Cassens family member Lisa Shashek as first defendant, along with Cassens & Sons, Cassens Corporation and "unknown defendants."

Armbruster and Maag also wrote a motion for an emergency order speeding up discovery from Cassens & Sons and Cassens Corporation so the statute of limitations would not run out.

Maag filed the complaint and the emergency motion at the courthouse Jan. 26, and Chief Judge Edward Ferguson assigned the case to Circuit Judge Don Weber.

Before the day ended Associate Judge Barbara Crowder granted the emergency motion.

No one ever explained how Crowder signed an order in a Weber case.

Crowder refused to answer directly. Through bailiff Rod Taylor she stated that the parties agreed to the order.

In an interview the following week Cassens Transport vice president Dwight Kay said, "Agreed with whom? I don't think there is anyone that agreed with anything."

He said Crowder's order came as a total surprise.

He said the complaint arrived by facsimile Jan. 30.

"You are typically filed with a complaint and then certain things go into motion," Kay said. "This thing looks backwards."

Weber undertook to learn how Maag obtained Crowder's signature, but Yount removed Weber from the case with a motion for substitution.

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

Stack took the case and vacated Crowder's order. He ruled that there was nothing nefarious about her order.

Yount's attorneys amended the complaint March 10. They added to the roster of defendants Cottrell Inc., Cassens family members and Cassens family businesses.

They alleged that the family used Cassens Corporation as "a thinly capitalized sham to avoid liability and to protect the family assets."

For most defendants the new complaint stated no specific claim at all.

Yount's attorneys amended the complaint again June 22. Again they stated no specific claims against most defendants, though they wrote that they repeated and realleged all counts against all defendants.

In Cottrell's notice of removal to federal court, attorney Daniel Carpenter of Bryan Cave in St. Louis called that approach unbelievable.

"Plaintiffs cannot name 20 defendants, actually state allegations against only five of them, and then in one count just state that every single other allegation of the complaint applies to the other 16 defendants, and without indicating how or which ones," Carpenter wrote.

Carpenter's amazement shook his math skill. Five and sixteen make 21, not 20.

He wrote that Illinois defendants were fraudulently joined. He wrote that Yount stated no claim against them and had no reasonable possibility of prevailing against them.

He wrote that Stack's order dismissing Cassens & Sons allowed removal.

He quoted federal law giving 30 days to remove a case after receipt of an order "from which it may first be ascertained that the case is one which is or has become removable."

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