Springman v. AIG Marketing, Inc., No. 07-737-GPM, 2007 WL 3406927 (S.D. Ill. Nov. 14, 2007)

Come on, you know the dance from the Rocky Horror Picture Show:

It’s just a jump to the left
And then a step to the right
With your hands on your hips
You bring your knees in tight
But it’s the pelvic thrust that really drives you insane,
Let’s do the Time Warp again!

For all you readers who may be RHPS virgins or need a refresher, not to worry; we’ve got you covered. Just check out http://www.rockyhorror.com/participation/virgins.php and you’ll be ready to read this post in no time. We’ll wait…

For all you readers who may be RHPS virgins or need a refresher, not to worry; we’ve got you covered. Just check out http://www.rockyhorror.com/participation/virgins.php and you’ll be ready to read this post in no time. We’ll wait…

Ok, ready? Then grab your newspapers, rubber gloves and toilet paper and read on. (We’re suggesting you forego the water guns for this particular RHPS screening for the well-being of your computer monitor.)

In this case, the plaintiff originally filed his putative class action back in July 2003, alleging that AIG Claim Services and Illinois National Insurance Company engaged in a scheme of improperly reducing medical bills for services provided under medical payment provisions of Illinois National policies and asserting claims for breach of contract, unjust enrichment, violations of Illinois Consumer Fraud and Deceptive Business Practices statutes and declaratory relief. Fast forward to in September 2007, when he moved for leave to amend the complaint and substitute AIG Marketing, Inc. as a party defendant for AIG Claim Services. The court granted the motion, and AIG Marketing immediately removed the case to federal district court under CAFA.

The plaintiff doesn’t like this. He wants to be in state court. He feels as if he’s suddenly caught in a rainstorm (quick, grab your newspapers!) and goes all Brad Majors approaching the court and moving to remand. Plaintiff: “Hi, my name is Brad Majors [yell at your computer screen now], and this is my fiancé, Janet Weiss. I wonder if you’d mind helping us [back to state court]…”

Then the plaintiff and the court do a little Time Warp dance. The plaintiff tried to argue that because the case was originally filed before CAFA’s effective date, it could not be removed to federal court under CAFA. The court decided that this was a Brad Majors (i.e., “a**hole”) motion and didn’t even wait for AIG to respond before it denied the motion. (Yes, it was such an unpersuasive argument that the court didn’t even need to hear a response before tossing it out.) The basic issue was whether the suit was commenced on or after CAFA’s effective date, so here’s a recap of the court’s dance (it is better if you do the dance moves while you read on):

First, a jump to the left: The court noted that the question of when an action is “commenced” for removal under CAFA is governed by the law of the state where the suit is originally filed. Under Illinios law, that means the date the complaint was filed, so in this case, the action was commenced on July 31, 2003 (pre-CAFA). 

And then a jump to the right: The Seventh Circuit has found that, even for actions commenced before CAFA, joinder of a new defendant after CAFA’s effective date allows removal. Both the rule of unanimity and the one-year removal deadline for diversity jurisdiction actions have been statutorily abolished with respect to removal under CAFA by 28 U.S.C. § 1453. The court also determined that because the rule of unanimity does not apply to CAFA removals, neither does the “first-served defendant” rule. Consider this the creation speech…the creation of CAFA. [Snap those rubber gloves now.] Accordingly, any defendant joined and served post-CAFA can remove the action, whether or not the earlier defendants tried to remove the case.

With your hands on your hips, you bring your knees in tight: The plaintiff argued that removal was improper because his amendment to substitute AIG Marketing related back to the filing date of the complaint, which was before CAFA’s effective date. To this stretch of a theory, we simply say, “Great Scott!” [Throw your toilet paper.] The court merely looked to the statutory language giving any defendant joined after CAFA’s effective date and determined that it effectively shut down the plaintiff’s argument.

So the court’s application of the plain language of the statute (rather than the pelvic thrust–which we don’t want to see the court do, either) is what drives this plaintiff insa-a-ane. The court determined that the plaintiff was trying to “interpose” the Seventh Circuit’s federal common law regarding CAFA (in which that court determined that in certain instances, amendment of a complaint may commence new litigation for removal purposes and also indicated that this is the case only if the amendment does not “relate back” to the original complaint), against the plain language of § 1453, and that, in that battle, the statutory language must win.

With that, the court determined that because § 1453(b) gives defendants joined after CAFA’s effective date the right to remove a case to federal court, the plaintiff could not do the Time Warp back to 2003 and attempt to deprive AIG Marketing of that right by arguing the amendment related back to the original complaint. This one’s staying in federal court, gang. Now, bust out those noisemakers!