Schillinger v. Union Pacific Railroad Co., 425 F. 3d 330, No. 05-8019, 2005 WL 2450230 (7th Cir. Oct. 5, 2005).
In this recent addition to a string of decisions rejecting removal to federal court under the Class Action Fairness Act of 2005, where the original petition was filed before the Act became law, the United States Court of Appeals for the Seventh Circuit was less than impressed by Union Pacific’s argument that the plaintiffs’ amended petition, filed after CAFA’s February 18, 2005 effective date, “commenced” a new action by expanding the plaintiff class, and by reinstating a previously dismissed defendant. The inclusion of Union Pacific as a new defendant in the amended complaint “was a scrivener’s error,” the Seventh Circuit said in this case involving allegations of trespass against railroads who leased their right-of-way over plaintiffs’ lands to telecommunications companies.

The court did recognize that the post-CAFA addition of a new defendant would generally permit that party to remove the case to federal court, citing the Seventh Circuit’s earlier rulings in Schorsch v. Hewlett-Packard Co., 417 F.3d 748 (7th Cir. 2005) and Knudsen v. Liberty Mutual Ins. Co., 411 F.3d 805 (7th Cir. 2005). Adding Union Pacific Corporation to the amended complaint after the plaintiffs had earlier voluntarily dismissed Union Pacific, the court found, was essentially a clerical error which did not trigger CAFA jurisdiction necessary to support the removal.
The Seventh Circuit’s dicta also noted that Illinois law governing limitations of actions looks to the date a plaintiff files a motion to amend, rather than the date the trial court grants the motion to file the amended pleading. Under those circumstances, the plaintiffs’ filing possibly predates CAFA, the court said, adding that it would leave this question for another day.