UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TANISHA A. SIMMONS, MARK )

SIMMONS, SR., TMS and ED, minors)

by (mother) next friend Tanisha )

A. Simmond, )

 )

Plaintiffs )

 )

v. ) CIVIL NO. 2:12 cv 39 

 )

COA, INC. aka Coaster Co. of )

America, Inc.; PHILIPS )

ELECTRONICS NORTH AMERICA )

CORPORATION, )

 )

Defendants )

OPINION AND ORDER

This matter is before the court on the Motion for Leave to

File Amended Petition for Removal [DE 8], filed by the defendant,

Philips Electronics North America Corporation, on February 17,

2012. For the following reasons, the motion is GRANTED.

Background

On December 29, 2011, the plaintiffs filed a complaint in

the Lake County Superior Court. The plaintiffs allege that Mark

Simmons Jr. died because he fell from a defective bunk bed and

ladder system manufactured by the defendant COA, Inc. The

plaintiffs further allege that a portable television sold by the

defendant, Philips North America Corporation, fell on Simmons

because it was defectively designed. 

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Philips was served with a summons and complaint on January

9, 2012. On January 25, 2012, Philips filed a timely Notice of

Removal with the Clerk of this court, citing diversity jurisdiction. The notice did not mention or indicate the position of

COA. 

COA was served by certified mail on January 10, 2012, and

did not enter an appearance in state court until January 27,

2012, the same day it filed its answer. Philips explains that it

did not believe COA’s consent to removal was necessary because it

was not yet a party to the proceedings in state court. Philips

moved to amend its petition for removal to add COA’s consent ten

days after the deadline to remove had expired. The plaintiffs

oppose Philips’ motion, arguing that the petition for removal was

defective.

Discussion

A defendant may remove a case filed in state court to a

federal court with jurisdiction by filing a notice of removal

containing a statement of the grounds for removal. 28 U.S.C. 

§1446. The notice must be filed within 30 days after the defendant receives the initial pleading. 28 U.S.C. §1446. "[A]ll

defendants who have been properly joined and served must join 

in or consent to the removal of the action." 28 U.S.C.

§1446(b)(2)(A). If all defendants have not consented to removal,

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the petition must explain why they have not given consent. Shaw

v. Dow Brands, Inc., 994 F.2d 364, 368 (7th Cir. 1993)(overturned

on other grounds). A petition that omits the consent of all

parties and does not provide an explanation is defective on its

face. Shaw, 994 F.2d at 368. However, a defendant’s consent may

be omitted if the defendant has not been served or is a nominal

party. Shaw, 994 F.2d at 369. 

The removing party may freely amend its petition for removal

for 30 days after the petition has been served. 28 U.S.C. 

§1446(b). After the 30 days has expired, substantive amendments

to the petition are prohibited. Stein v. Sprint Communications,

968 F.Supp. 371, 375 (N.D. Ill. 1997). Substantive amendments

are those that state a new basis for exercising jurisdiction. 

However, the court will allow the removing party to amend its

petition for removal to cure technical defects. "To determine

whether an amendment is 'technical' or 'substantive,' courts have

looked to the face of the removal petition." Stein, 968 F.Supp.

at 375 (comparing Borne v. New Orleans Health Care, 116 B.R. 487,

491 (E.D. La. 1990) (declining to permit the defendant to assert

a wholly new ground for removal where that ground did not appear

on the face of the removal petition), with Industrial Nat'l Bank

of East Chicago v. Employers Casualty Co., 1986 WL 1008 (N.D.

Ill. Jan. 3, 1986) (permitting amendment to removal petition

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under §1653 where jurisdiction was imperfectly pled in petition,

but not missing completely)). "[W]here jurisdiction is apparent

from the face of the notice of removal, although imperfectly

pleaded, a party may amend its notice of removal to state the

basis for the district court's jurisdiction . . . . On the other

hand, where the jurisdictional base is not apparent from the face

of the notice of removal, an amendment to add new jurisdictional

allegations concerning that jurisdictional base will be denied as

untimely." Stein, 968 F.Supp. at 376 (citing Borne, 116 B.R. at 

491). 

The parties dispute whether adding the consent of the other

defendant after the 30 days have expired is a technical or

substantive amendment. In Shaw, the defendant did not state in

his petition for removal that the other defendants consented. 

The court determined that the consent of two of the other defendants was not necessary because one had been dismissed from the

suit before removal and the other was not served before the petition was filed. Shaw, 994 F.2d at 369. The controversy surrounded the consent of a third defendant, Dow Chemical. The

removing defendant argued that the plaintiff had consented to

dismiss Dow Chemical voluntarily before the petition for removal

was filed, and in any event, Dow Chemical consented to the

removal. The court concluded that the additional defendant must

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have been a nominal party because the plaintiff voluntarily

consented to dismiss it and determined that Dow Chemical’s

missing signature on the removal petition did not defeat jurisdiction. Shaw, 994 F.2d at 369. 

The plaintiffs complain that COA is not a nominal defendant

and had been served at the time the petition was filed, rendering

its consent necessary. The plaintiffs argue that because COA’s

consent was necessary and not indicated on the removal petition

the error was substantive, depriving the court of jurisdiction

and requiring a remand. Philips concedes that the petition was

defective because it did not state the reason COA’s consent was

excluded from the petition for removal, but it maintains that the

error was technical and may be cured.

To determine whether the error was technical or substantive,

the court first must examine whether jurisdiction was apparent

from the face of the petition. See Stein, 968 F.Supp. at 376

(explaining that the proposed amendment is substantive if jurisdiction was not apparent from the face of the notice removal and

the amendment seeks to add a new basis for jurisdiction). 

Article III, Section 2 of the Constitution limits the federal

courts' jurisdiction to cases arising under the laws of the

United States and between citizens of different states. Federal

courts have subject matter jurisdiction in all civil actions

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arising under the Constitution, laws, or treaties of the United

States, in addition to cases between citizens of different states

where the amount in controversy exceeds $75,000. 28 U.S.C. 

§§1331, 1332. 

In its petition, Philips states that it is a citizen of

Massachusetts, COA is a citizen of California, and the plaintiffs

are citizens of Indiana. The plaintiffs seek damages in excess

of $5,000,000. Philips pled facts showing that the requirements

of diversity jurisdiction were satisfied, and it is clear from

the face of the petition that the court may exercise diversity

jurisdiction. Philips is not seeking to amend the petition to

state a new substantive basis for jurisdiction. Rather, Philips

is seeking to amend the petition to add the consent of COA. 

Because the amendment does not alter the substantive basis for

jurisdiction, the court finds that the proposed amendment is

technical.

Furthermore, the record does not reflect that the plaintiffs

will be prejudiced if the court allows Philips to amend its

petition. COA did not enter an appearance and file its answer in

the state court proceeding until the day Philips filed the petition for removal. Because of COA’s late appearance and because

Philips was informed that COA had not been served upon inquiry

with the Lake County Court, Philips did not believe it needed

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COA’s consent to remove. See Shaw, 994 F.2d at 369 (explaining

that the removing defendant did not need to seek the consent of

defendants who had not been served). The record reflects that

the plaintiffs were aware of Philips' position because Philips

sent the plaintiffs an extra copy of the removal petition to

forward to COA because it did not have COA’s contact information. 

Philips promptly corrected its error once it learned that COA

filed an appearance in the state court action and moved to amend

its petition ten days after the 30 day time limit expired. This

short delay did not harm the plaintiffs and was not done in bad

faith. 

_______________

Based on the foregoing, the Motion for Leave to File Amended

Petition for Removal [DE 8] filed by the defendant, Philips

Electronics North America Corporation, on February 17, 2012, is

GRANTED.

ENTERED this 30th day of May, 2012

s/ ANDREW P. RODOVICH

 United States Magistrate Judge

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