IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AMOS and DEBBIE HOSTETLER, )

RITA CHAIREZ, BECKY NULL, and )

MARIA TOVAR, on behalf of themselves )

and all others similarly situated, )

)

Plaintiffs, )

)

v. ) Cause No. 3:15-cv-00226-JD-CAN

)

JOHNSON CONTROLS, INC. and )

TOCON HOLDINGS, LLC, )

)

Defendants. )

PLAINTIFFS’ MOTION TO REMAND

Plaintiffs, on behalf of themselves and a class of similarly situated individuals, and

pursuant to 28 U.S.C. §1447(c), request that this Court remand this case to the Circuit Court of

Elkhart County, Indiana.

I. INTRODUCTION

On June 3, 2014, Plaintiffs served their Complaint and Summons on Defendant Johnson

Controls, Inc. (“JCI”). The Complaint requested not only money damages but also an injunction

requiring JCI to clean up contamination in Plaintiffs’ neighborhood to nondetectable levels.

Quoting Plaintiffs’ Complaint, JCI admits in its Notice of Removal that its cost to comply with

the requested injunction would “certainly” exceed the $10 million it has already spent on

remediation efforts at the site. JCI has been aware of that fact—and hence that the $5 million

jurisdictional minimum under the Class Action Fairness Act (“CAFA”), 28 U.S.C. §1332(d), has

been met—since the day it received the Complaint. It certainly needed no information from

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Plaintiffs beyond the Complaint to reach that awareness, and does not claim it did. Therefore,

the 30-day deadline for JCI to seek removal expired nearly a year ago. Because JCI’s remand

was untimely, this case should be remanded to state court.

As an independent ground for remand, JCI waived any right it might have had to remove

this case. JCI did not simply wait a year to file its Notice of Removal. It actively litigated the

case in state court, filing multiple motions, including an unsuccessful motion to dismiss all of

Plaintiffs’ claims, initiating extensive discovery, and delaying class certification proceedings.

Only after realizing it was not faring well in state court did JCI decide to try its luck in this

forum. Numerous courts have recognized that such conduct can effect a waiver of the right to

seek removal. For this additional reason, the Court should remand this action to state court.1

In addition, because the clearly established law demonstrated that JCI’s removal was

untimely, the Court should award “just costs,” including attorney fees, under 28 U.S.C. §

1447(c).

1

28 U.S.C. §1332(d)(4)(A), CAFA’s “Local Controversy Exception,” provides that a district court “shall

decline to exercise jurisdiction” over certain types of class actions. JCI maintains in its Notice of Removal that that

exception does not apply here, i.e., does not deprive this Court of subject matter jurisdiction. JCI also maintains that

even if the Local Controversy Exception applies, it has a separate statutory right to remove this action based on

complete diversity. In that regard JCI contends that defendant TOCON Holdings, LLC, an Indiana citizen, was

fraudulently joined, and thus should be disregarded for purposes of determining the parties’ diversity of citizenship.

While the untimeliness of JCI’s removal and its waiver of the right to seek removal are each dispositive and

require remand of this action, the incorrectness of JCI’s contentions concerning CAFA’s Local Controversy

Exception and fraudulent joinder provides additional grounds for remand. Plaintiffs intend to file a second motion

to remand on these grounds on or before July 10, 2015. See 28 U.S.C. §1447(c) (“A motion to remand the case on

the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after filing of the

notice of removal under section 1446(a).”). JCI and Plaintiffs have agreed to mutual extensions of 15 days on the

remand briefing; however, because untimeliness is a procedural defect subject to the 30-day rule under § 1447(c),

Plaintiffs are filing the instant motion today to avoid any question concerning this Court’s authority to issue a

remand on this basis.

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II. ARGUMENT

A. JCI’s Removal Was Untimely.

The general removal statute includes two different 30-day time limits for removal. The

first applies to cases that are removable based on the initial pleading. In such a case, the notice

of removal “shall be filed within 30 days after the receipt by the defendant . . . of a copy of the

initial pleading setting forth the claim for relief. . . .” 28 U.S.C. §1446(b)(1). The second applies

to cases in which the right to removal cannot be determined from the initial pleading. As

provided by §1446(b)(3):

[I]f the case stated by the initial pleading is not removable, a notice of removal

may be filed within 30 days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which is or has become

removable.

As the Seventh Circuit has noted, “It’s clear that the 30-day removal clock is triggered only by

the defendant’s receipt of a pleading or other litigation paper facially revealing that the grounds

for removal are present.” Walker v. Trailer Transit, Inc., 727 F.3d 819, 823-24 (7th Cir. 2013)

(emphasis in original).

JCI was served with Plaintiffs’ Complaint and Summons on June 3, 2014. (Notice of

Removal, Docket Entry (“DE”) 1 at ¶ 14.) As JCI acknowledges, the Complaint seeks both

money damages and an injunction ordering it “to remove the Contamination, including all related

vapors, that emanated from the Plant and now exists on the Plaintiffs’ properties to non-detect

levels.” (Id. ¶¶ 19, 39.)2The Complaint even included a plume map, prepared by JCI’s own

2

Specifically, the “Prayer For Relief” in the Complaint requested that the state court: “ . . . 4. Order the

Defendants to remove the Contamination, including all related vapors, that emanated from the Plant and now exists

on the Plaintiffs’ properties to non-detect levels[.]” (DE 4-1 at 28).

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consultant, depicting the geographic scope of contamination requiring remediation. (DE 4-1 at

Exhibit 2.)

Despite the fact that JCI’s Notice of Removal was filed almost a year after it received the

Complaint, JCI maintains its removal was timely. According to JCI, because the Complaint does

not specify the amount of money damages Plaintiffs seek, it could not ascertain from the

Complaint that CAFA’s $5 million amount-in-controversy requirement was met. Thus, it says,

neither of the two 30-day time limits for removal has begun even to this day:

Neither the Complaint nor any subsequent paper given to JCI by Plaintiffs has

specifically disclosed the amount of money damages at stake. The Complaint

itself was notably silent on the issue. Thus, the clock under §1446(b) has not yet

begun to run.

(DE 1 at ¶ 39.) JCI adds that its decision to seek removal now was prompted by recent

depositions in which it supposedly learned for the first time “that some of the personal injuries

allegedly suffered by the named class members are significant, and damages for those injuries, if

proven, could meet the CAFA minimum by themselves.” (Id. at ¶ 16.)

It is well-settled in the Seventh Circuit that a defendant’s cost to comply with a requested

injunction can satisfy the amount-in-controversy requirement for federal diversity jurisdiction.

As was said in Macken ex rel. Macken v. Jensen, 333 F.3d 797 (7th Cir. 2003):

In a suit for injunctive relief, “the amount in controversy is measured by the value

of the object of the litigation.” Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L.Ed.2d 383 (1977). And, at

least in this circuit, the object may be valued from either perspective—what the

plaintiff stands to gain, or what it would cost the defendant to meet plaintiff’s

demand. See In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d

599, 609-10 (7th Cir. 1997); Uhl v. Thoroughbred Technology and

Telecommunications, Inc., 309 F.3d 979, 983 (7th Cir. 2002).

Id. at 799-800. See also BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 553 (7th Cir. 2002)

(“It seems to us beyond absurd to allow a defendant to remove if the plaintiff is seeking damages

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of $75,000.01, but not if the plaintiff is seeking an injunction directing the defendant to tear

down, as a nuisance, a $10 million building that the defendant owns.”). JCI agrees, and even

cites to the same authority. (DE 1 at ¶ 19.) Courts within the Seventh Circuit have applied this

rule in cases removed under CAFA. See, e.g., White v. Playphone, Inc., 2009 WL 499103, at *3

(W.D. Wis. Feb. 27, 2009).

Notwithstanding JCI’s professed inability to discern from the Complaint whether

CAFA’s jurisdictional minimum is met, it readily admits that its cost to provide the injunctive

relief called for by the Complaint would certainly exceed $5 million:

19. . . . Specifically, Plaintiffs are requesting a court order that JCI clean up and

remediate all of Plaintiffs’ properties (including soil, groundwater, and indoor air)

to levels at which TCE and related contaminants are not detectable. (See Ex. A,

Compl., Prayer For Relief, ¶4.) Plaintiffs essentially allege that the multi-milliondollar remediation JCI has already performed to date—which involves cleaning

up contaminants to minimum threshold levels permitted by the Indiana

Department of Environmental Management and the Environmental Protection

Agency—is insufficient, and that a more rigorous and more financially onerous

cleanup is necessary.

20. JCI has already spent more than $10 million on remediation efforts, which

remain ongoing. As a result, an injunction ordering the additional and far more

rigorous cleanup that Plaintiffs now seek would certainly exceed $5 million.

(DE 1 at ¶¶ 19, 20; footnote omitted.)

It is JCI’s burden to show by a preponderance of the evidence that its removal was

timely. See Clemons v. Ferolite, Vultaggio & Sons, 2004 WL 442602, at *2 (N.D. Ill. Feb. 2,

2004) (“Because Hornell is the party seeking to preserve removal, it bears the burden of

establishing, by a preponderance of the evidence, that it complied with the requirements of the

removal statute.”); see also Speedy v. 3M Company, 2015 WL 2265410, at *3 (S.D. Ill. May 12,

2015) (granting plaintiff’s motion to remand where defendant failed to prove its notice of

removal was timely); Countrywide Home Loans Servicing, L.P. v. Dietrich, 2009 WL 3517691,

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at *1 (E.D. Wis. Oct. 27, 2009) (holding that defendant “failed to meet her burden of

establishing that her notice of removal was timely”). It is therefore JCI’s burden to show that its

conceded awareness that the cost of the requested injunctive relief will exceed CAFA’s

jurisdictional minimum comes from facts it learned after it received the Complaint—indeed,

from facts it learned no more than 30 days before its Notice of Removal was filed. It has cited

no such evidence. That alone dooms its removal as untimely. See, e.g., Clemons, 2004 WL

442602, at *3 (holding removal untimely where the defendant “wholly fails to explain why it

could not have ascertained these costs [of complying with a requested injunction] within thirty

days of being served with the complaint”).

JCI has admitted that the cost to comply with the injunction requested in Plaintiffs’

Complaint would exceed $5 million. Once a defendant has received a complaint that seeks an

injunction, there is nothing more it needs from the plaintiff for it to be able to determine how

much it will cost to comply. That information will be in the defendant’s possession, not the

plaintiff’s. In this case, JCI and its many consultants have been investigating the contamination

since at least 1992. At the least, the information will be obtainable from sources within the

defendant’s control rather than that of the plaintiff. If courts were to hold that the 30-day

removal clock did not start until the defendant, acting at whatever pace it wished, marshalled

whatever information it needed to determine whether that cost exceeded the jurisdictional

minimum, it would defeat the twofold purpose for the deliberately short statutory time limit for

removal:

to deprive the defendant of the undeserved tactical advantage that he would have

if he could wait and see how he was faring in state court before deciding whether

to remove the case to another court system; and to prevent the delay and waste of

resources involved in starting a case over in a second court after significant

proceedings, extending over months or even years, may have taken place in the

first court.

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Walker, 727 F.3d at 823 (quoting Wilson v. Intercollegiate (Big Ten) Athletic Ass’n, 668 F.2d

962, 965 (7th Cir. 1982)); see also Fields v. Jay Henges Enterprises, Inc., 2006 WL 1875457, at

*3 (S.D. Ill. June 30, 2006) (“The ‘policy and purpose of Congress [is] to effect removals as

early as possible and avoid unnecessary delay.’ Correspondingly, courts should not encourage

parties to ‘hold [ ] back’ their ‘federal cards.’ ‘If a [defendant] has good grounds to remove a

case to federal court, it cannot experiment in state court before seeking removal.’”) (citations

omitted; brackets in original).

The potential abuse by defendants is even greater in cases to which CAFA applies.

CAFA does not contain the one-year time limit for removal otherwise applicable to diversity

cases. See 28 U.S.C. § 1453(b). Therefore, a defendant with internal knowledge of the

injunction cost could litigate for years in state court, and if not faring well, could pull the

removal parachute under an argument that it just determined (again, internally) that the cost of

the injunction would exceed $5 million.

JCI has tried to obtain precisely the sort of “undeserved tactical advantage,” and has

caused precisely the “delay and waste of resources,” that the removal statute was intended to

prevent by actively litigating in state court for just shy of one year. On August 25, 2014, JCI

moved to dismiss Plaintiffs’ entire Complaint. (See DE 11 at p. 5.) JCI also asserted a

counterclaim against co-Defendant TOCON Holdings, LLC. (DE 8 at pp. 4-7.) JCI appeared in

court on December 3, 2014 and argued that all of Plaintiffs’ claims should be dismissed. (See

DE 11 at p. 6.) After the state court denied JCI’s motion to dismiss (DE 1-12) and set Plaintiffs’

motion for class certification for a hearing to take place on April 24, 2015, JCI objected and

moved to stay all briefing on class certification and to delay any hearing on Plaintiffs’ motion for

at least seven months so that it could conduct class-wide discovery. (See DE 11 at p. 7.) The

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state court held a hearing on JCI’s motion to stay briefing on March 6, 2013. (See id. at p. 8.)

The state court denied JCI’s motion and set the class certification hearing for June 26, 2015.

(See id.) JCI then served 97 interrogatories and 127 requests for production of documents. JCI

filed a motion to compel and argued it to a Special Master. (See id.) JCI also deposed Plaintiffs’

expert and all five of Plaintiffs’ class representatives. Plaintiffs then requested a scheduling

order to set deadlines for exchanging witness and exhibit lists in preparation for the class

certification hearing. (See id. at p. 9.) The state court set Plaintiffs’ request for a scheduling

order for hearing on May 29, 2015. (Id.) The night before the scheduled hearing, without

providing any prior notice to the Plaintiffs or the state court, JCI filed its Notice of Removal.

(DE 1.)

JCI actively litigated this case in state court for 359 days, lost its motion to dismiss,

deposed all five class representatives and Plaintiffs’ expert, and was just four weeks away from a

class certification hearing—JCI never once in those 359 days indicated to Plaintiffs or the state

court its intention to remove this case. To prevent this type of state court “experimenting,”

courts hold that the 30-day clock under § 1446(b) commences when the complaint is served if

the jurisdictional minimum is satisfied by the likely cost of complying with a requested

injunction, and the information needed to determine that cost is within the defendant’s control.

For example, Clemons involved a false-advertising claim brought as a class action against the

seller of bottled iced tea. 2004 WL 442602, at *1. The plaintiff’s complaint sought money

damages from the defendant, Hornell, as well as an injunction prohibiting it from making certain

claims about the supposed health benefits of its product. Id. More than 30 days after Hornell

received the complaint, it removed the case to federal court. Id. Hornell maintained it did not

become aware that the cost of complying with the injunction would likely exceed the

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jurisdictional minimum until the plaintiff filed his motion for a preliminary injunction. Id. at *2.

The court held, however, that because the information Hornell needed to determine the cost of

complying with the injunction was within its possession, the 30-day time limit for removal

started when the complaint was served, thus making the removal untimely:

The critical issue here is whether Hornell could have ascertained that the case was

removable based on the complaint alone. The complaint seeks an injunction

prohibiting Hornell “from claiming in labeling, advertisement or any other form”

that the drinks offer the claimed health benefits. Therefore, Hornell’s assertion

that it could not ascertain the costs of complying with such an injunction is

without merit; it could easily envision that it would at least be required to re-label

its drinks if the requested relief were to be granted. It was not necessary for the

complaint to include any other “facts” regarding this request; the information that

Hornell could use to determine the costs of complying with an injunction to relabel its drinks was solely within Hornell’s possession.

Clemons, 2004 WL 442602, at *3 (emphasis in original).

Here JCI’s concession that the cost of complying with the requested injunction “would

certainly exceed $5 million” (DE 1 at ¶ 20) is not even purportedly based on information JCI

learned after it received Plaintiffs’ Complaint. To the contrary, it is based on JCI’s own

comparison of the $10 million it has already spent on cleanup with its own estimation of the

likely cost of the “more rigorous and more financially onerous cleanup” (id. at ¶ 19) requested in

the Complaint. As in Clemons, that information is in JCI’s possession. It did not come—and

could not possibly have come—from Plaintiffs.

JCI relies on Walker to support its timeliness argument solely with respect to Plaintiffs’

claims for monetary damages. (See DE 1 at ¶¶ 38, 40.) Unquestionably, in evaluating requests

for monetary damages under § 1446(b)(3), the pleadings or other papers must “specifically

disclose the amount of monetary damages sought” in order to trigger the 30-day clock. Walker,

727 F.3d at 824. However, in this case, unlike Walker, Plaintiffs are seeking both monetary

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damages and injunctive relief. The Walker holding only applies to Plaintiffs’ damages claims.3

Plaintiffs’ claims for injunctive relief provide an independent basis from which JCI could

determine that the amount in controversy exceeded $5 million. The Eleventh Circuit recently

ruled that a request for declaratory judgment alone (with no damages request) was “up to the

task” of satisfying CAFA’s $5 million amount-in-controversy requirement. South Florida

Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315-16 (11th Cir. 2014). Here, just as in

Clemens, JCI was in the better position to determine that the cost of Plaintiffs’ injunctive relief

would exceed $5 million.

The clear untimeliness of the removal of this action is dispositive of the present motion.

Because JCI’s Notice of Removal was filed many months too late, this case must be remanded to

state court.

B. JCI Has Waived Any Right to Removal.

Even apart from the untimeliness of JCI’s removal, this case should be remanded to state

court because JCI’s conduct effected a waiver of any right it might have had to removal. As is

described in more detail in the previous section, JCI’s Notice of Removal was filed 359 days

after Plaintiffs’ Complaint was served, and followed, among other things, JCI’s unsuccessful

attempt to have all of Plaintiffs’ claims dismissed. (See supra, at pp. 7-8.) JCI never once, prior

to filing its Notice of Removal, indicated its intent to remove this case to federal court to either

the state court or Plaintiffs. Rather, all of JCI’s affirmative actions taken in state court illustrated

JCI’s intention to actively litigate the case in state court.

3 Walker involved a contract dispute, and the Walker court did not mention or consider equitable relief. Moreover,

every case the Walker court cited involved requests for monetary damages, and not equitable relief.

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In Fate v. Buckeye State Mut. Ins. Co., 174 F. Supp. 2d 876 (N.D. Ind. 2001), the court

found the defendant, Buckeye, had waived removal under circumstances that closely resemble

those here:

Buckeye has certainly taken affirmative action in state court by moving to dismiss

the case and attempting to bifurcate the issues. The intent of these motions was

not to merely defend against plaintiff’s claims, but to dispose of the case

altogether. Moreover, as discussed in the previous section, from the time of the

initial complaint, Buckeye was on notice that the amount-in-controversy

requirement may be met. Rather than immediately investigate further to

determine whether the case was removable, Buckeye chose to seek dismissal of

the case in state court and to litigate in state court for nearly one full year. Only

when the state court denied its motions did Buckeye remove the case to this Court.

Because Buckeye sought affirmative action in state court before removing to

federal court, it evidenced an intent to litigate in state court. Accordingly,

Buckeye waived its right to remove this case to federal court.

Id. at 881-82 (emphasis added). As this Court recognized in Kadambi v. Express Scripts, Inc.,

2014 WL 2589673 (N.D. Ind. June 10, 2014), waiver may be found under proper circumstances;

while attending a motion to dismiss hearing may not constitute waiver, waiting until an adverse

ruling is handed down in the state court may indeed result in waiver. Id. at *4-5 (citing to

several cases including Fate, 174 F. Supp. 2d at 882); see, e.g., Hill v. Citicorp, 804 F. Supp.

514, 517 (S.D.N.Y. 1992) (holding defendants waived their right to removal where they filed and

lost a motion “seek[ing] a disposition, in whole or in part, of the action its merits”); McKinnon v.

Doctor’s Associates, Inc., 769 F. Supp. 216, 218-19 (E.D. Mich. 1991) (“[I]f a potentially

dispositive motion, such as a motion to dismiss, is made and argued by the defendant, the state

court’s adverse decision cannot be ‘appealed’ to this Court by way of removal.”) (internal

citation omitted); c.f. Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004) (holding that

defendant did not waive removal where it filed a motion to dismiss in state court, but removed

the case to federal court before the state court ruled on the motion).

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Because JCI engaged in extensive litigation in state court for one week short of a year,

including litigating to completion an unsuccessful motion to dismiss all claims, initiating

extensive discovery unrelated to the cost of complying with the injunction sought by Plaintiffs,

appearing for several hearings, and attempting to forestall the state court’s disposition of

Plaintiffs’ motion for class certification, it has waived any right it might have had to seek

removal.

III. REQUEST FOR ATTORNEY FEES

An order remanding the case may require payment of “just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Typically,

orders of remand will not include an award of attorney fees and costs unless the removing party

“lacked an objectively reasonable basis for seeking removal.” See Martin v. Franklin Capital

Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). The purpose of this

standard has been described as follows: “to deter removals sought for the purpose of prolonging

litigation and imposing costs on the opposing party, while not undermining Congress’ decision to

afford defendants a right to remove when the statutory criteria are satisfied.” Moore’s Fed. Prac.

(3d) § 107.41[3][a][ii] (citing Martin, 546 U.S. at 140). The Seventh Circuit has interpreted

Martin, and applied the following “general rule” for fee awards under § 1447(c):

[I]f, at the time the defendant filed his notice in federal court, clearly

established law demonstrated that he had no basis for removal, then a district

court should award a plaintiff his attorneys’ fees. By contrast, if clearly

established law did not foreclose a defendant’s basis for removal, then a district

court should not award attorney’s fees.

Wolf v. Kennelly, 574 F.3d 406, 412 (7th Cir. 2009) (quoting Lott v. Pfizer, Inc., 492 F.3d 789,

793 (7th Cir. 2007)).

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Accordingly, the question here is whether at the time JCI removed this case, clearly

established law demonstrated that it had no basis for removal. The answer lies in JCI’s own

Notice of Removal. The clearly established law – that the amount in controversy for injunctive

relief may be determined by defendant’s cost to comply – was cited by JCI. (DE 1 ¶ 19 (citing

In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609-10 (7th Cir. 1997)).

JCI’s admission that Plaintiffs’ Complaint sought injunctive relief that “would certainly exceed

$5 million” forecloses JCI’s removal upon any date after July 3, 2014 (30 days after JCI received

the Complaint). Yet, JCI litigated in state court for 359 days, seeking to dismiss all of Plaintiffs’

claims, and when it lost on its motion, sought to stay the class hearing while taking class

discovery of the class representatives and of Plaintiffs’ environmental expert. Only one day

prior to a class hearing scheduling conference, JCI finally played its federal cards, claiming to

have timely removed. Under these facts, JCI lacked an objectively reasonable basis for removal.

See, e.g., Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447-48 (9th Cir. 1992)

(affirming award of attorney fees incurred in remanding case where defendant removed the case

after it had actively litigated in state court thereby waiving right to removal). This Court should

award “just costs” including attorney’s fees.

IV. CONCLUSION

JCI’s Notice of Removal admits that “JCI has already spent more than $10 million on

remediation efforts, which remain ongoing,” and that “[a]s a result, an injunction ordering the

additional and far more rigorous cleanup that Plaintiffs now seek would certainly exceed $5

million.” (DE 1 at ¶ 20.) JCI’s Notice of Removal also acknowledges that the “rigorous” nature

of the cleanup Plaintiffs seek—one in which JCI must “clean up and remediate all of Plaintiffs’

properties (including soil, groundwater, and indoor air) to levels at which TCE and related

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contaminants are not detectable” (Id. at ¶ 19)—is disclosed in Plaintiffs’ Complaint. (See id.

(citing “Ex. A, Compl., Prayer For Relief, ¶4” as the basis for the passage just quoted).) Because

Plaintiffs’ Complaint provided clear notice that the predicates for removal were present, JCI’s

Notice of Removal was due 30 days after it received the Complaint. Instead it was filed nearly a

year later. Its gross untimeliness requires that this case be remanded.

Moreover, JCI waived any right it might have had to seek removal by actively litigating

this case in state court for almost a year. Only after it saw things were not going well did it

decide to remove the case to federal court. Courts do not permit the removal statutes to be used

in this manner. This Court should not allow JCI to do so here, and should order JCI to pay

Plaintiffs’ “just costs,” including attorney fees, incurred as a result of JCI’s improper removal.

Respectfully submitted,

/s/ Thomas A. Barnard_____________________

Thomas A. Barnard, Attorney No. 4011-49

Rodney L. Michael, Jr., Attorney No. 23681-49

Melissa A. Gardner, Attorney No. 29920-49

Taft Stettinius & Hollister llp

One Indiana Square, Suite 3500

Indianapolis, Indiana 46204-2023

tbarnard@taftlaw.com

rmichael@taftlaw.com

mgardner@taftlaw.com

Telephone: 317.713.3500

Facsimile: 317.713.3699

John D. Ulmer, Attorney No. 921-20

Yoder, Ainlay, Ulmer, & Buckingham, LLP

130 North Main Street

Goshen, Indiana 46527

Telephone: 574.533.1171

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on June 26, 2015, I electronically filed the foregoing with the Clerk

of Court using the CM/ECF system, which sent notification of such filing to all counsel of

record. Parties may access this filing through the Court’s system.

The undersigned hereby certifies that on June 26, 2015, a copy of the foregoing was

mailed by U.S. Mail, to:

TOCON Holdings LLC

c/o Tony Adkins

5722 Pond Ridge Circle

Georgetown, IN 47122

/s/ Thomas A. Barnard________________

12057544

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