3043084 – LRB/MLW ARDC # 6325949

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KERRY ZITO, )

Plaintiff, )

vs. ) Case No.

)

THOMAS MILLER and )

WESTERN EXPRESS, INC. )

)

Defendants. )

NOTICE OF REMOVAL

NOW COME the Defendants, WESTERN EXPRESS, INC. and THOMAS MILLER, by

and through their attorneys, Lew R.C. Bricker and Michael L. Wojciak of SmithAmundsen LLC,

and pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, remove this action to the United States

District Court for the Northern District of Illinois, Eastern Division, and in support thereof, state

as follows:

1. This matter arises from a July 13, 2019 accident on Interstate 80 in Thornton

Township, Cook County, Illinois. (See Complaint at Law attached as Exhibit A). The Plaintiff,

KERRY ZITO, alleges that she suffered “personal injuries and other pecuniary damages, all

being past, present, and future” as a result of the accident. (Ex. A, Count I, ¶ 7).

2. On July 9, 2020, the Plaintiff filed a two-count Complaint in the Circuit Court of

Cook County, Illinois bearing Case No. 2020 L 7273. (Ex. A.)

3. The Defendants, WESTERN EXPRESS, INC. and THOMAS MILLER, seek to

remove this matter based upon subject matter jurisdiction conferred by diversity of citizenship

and amount in controversy, as established in 28 U.S.C. § 1332.

20 cv 4993
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4. Both Defendants join in the removal of this matter, as established in 28 U.S.C. §

1446.

5. As discussed in more detail below, diversity of citizenship exists, the Defendants

assert a good faith basis that the amount in controversy exceeds $75,000.00, and the filing of this

Notice of Removal is timely.

ARGUMENT

Diversity of Citizenship Exists

6. Upon information and belief, the Plaintiff, KERRY ZITO, is currently and was at

the time of the subject accident domiciled, a citizen and resident of the State of Illinois.

7. At the time of the subject accident, at the time the Complaint was filed in the

Circuit Court of Cook County, Illinois and at the present time, the Defendant, WESTERN

EXPRESS, INC., was and is a citizen of the State of Tennessee. The United States Supreme

Court determined that a corporation is a citizen of both (1) every state where it is incorporated,

and (2) the state where it has its principal place of business. Hertz Corp. v. Friend, 559 U.S. 77,

92-93 (2010).

8. At the time of the occurrence, at the time the Complaint was filed in the Circuit

Court of Cook County, and at the present time, the Defendant, WESTERN EXPRESS, INC., was

and is incorporated in the State of Tennessee. (See Western Express, Inc.’s Filing Information

with the Tennessee Secretary of State attached as Exhibit B).

9. The United States Supreme Court stated that a corporation’s principal place of

business is determined by the “nerve center” test. The Court explained that:

... the place where a corporation’s officers direct, control, and

coordinate the corporation’s activities. It is the ...corporation’s

nerve center. And in practice it should normally be the place where

the corporation maintains its headquarters – provided that the
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headquarters is the actual center of direction, control, and

coordination, i.e., the nerve center, and not simply an office where

the corporation holds its board meetings (for example, attended by

directors and officers who have traveled there for the occasion).

Hertz Corp., 559 U.S. at 92-93. At the time of the alleged subject occurrence, at the time the

Complaint was filed in the Circuit Court of Cook County, Illinois and at the present time, the

Defendant, WESTERN EXPRESS, INC., maintained its principal place of business in Nashville,

Tennessee. (Ex. B.)

10. Thus, the Defendant, WESTERN EXPRESS, INC., meets both prongs of

citizenship laid out by the United States Supreme Court, and is deemed a citizen of the State of

Tennessee.

11. The Defendant, THOMAS MILLER, at the time of the subject accident, at the

time the Complaint was filed in the Circuit Court of Cook County, Illinois and at the present time

was and is domiciled, a citizen and resident of the State of Arkansas. (See Thomas Miller’s

Commercial Driver’s License attached as Exhibit C.)

12. Complete diversity of citizenship exists between the Plaintiff, KERRY ZITO, and

the Defendants, WESTERN EXPRESS, INC. and THOMAS MILLER.

The Amount in Controversy Exceeds $75,000.00

13. The Plaintiff stated in her pre-suit settlement demand package that she sustained

injuries to her neck, back and shoulder and must undergo a cervical discectomy and fusion.

14. The Plaintiff alleges in her Complaint that as a result of the accident, she

sustained personal injuries and pecuniary damages, all being past, present and future.” (Ex. A,

Count I, ¶ 7).
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15. The Plaintiff made a written settlement demand on February 26, 2020, seeking an

amount in excess of $75,000.00. Accordingly, the movants believe in good faith that the amount

in controversy exceeds the jurisdictional limit of $75,000.00.

Removal Is Timely Filed

16. This Notice of Removal was filed within (30) thirty days of “the receipt by the

Defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b).

17. The Plaintiff filed her Complaint at Law on July 9, 2020. (See Exhibit A.)

18. Service was achieved on the Defendant, WESTERN EXPRESS, INC., on or

about July 28, 2020. (See Exhibit A.)

19. Service was achieved on the Defendant, THOMAS MILLER, on or about August

18, 2020.

20. As established in this Notice, the Defendants have properly filed their Notice of

Removal within the applicable thirty-day period as set forth in 28 U.S.C. §1446 and therefore,

the Defendants’ Notice of Removal is timely filed.

21. As required by 28 U.S.C. §1446(d), the movants will promptly serve upon the

Plaintiff’s counsel and file with the Circuit Court of Cook County a true and correct copy of this

Notice.

22. As required by 28 U.S.C. §1446(a), a true and correct copy of all process,

pleadings, and orders served upon the Defendants in this action is attached hereto. (See Ex. A.)

23. By removing this action, the Defendants do not waive any defenses available to

them.
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24. If any question arises as to the propriety of the removal of this action, the movants

request the opportunity to present a brief and oral argument in support of their position that this

case is removable.

25. This Notice is signed and submitted in compliance with Rule 11 of the Federal

Rules of Civil Procedure.

WHEREFORE, the Defendants, WESTERN EXPRESS, INC. and THOMAS MILLER,

by and through their attorneys, Lew R.C. Bricker and Michael L. Wojciak of SmithAmundsen

LLC, pray that this Honorable Court retain jurisdiction of this matter pursuant to 28 U.S.C. §§

1332, 1441, and 1446. The movants further pray should this Court require a hearing that they be

afforded the opportunity to present a brief and oral argument in support of their position. The

Defendants pray for further and other relief as this Court deems proper and just.

Respectfully submitted,

/s/ Michael L. Wojciak

By: Michael L. Wojciak – Bar Number 6325949

Attorney for Defendants,

Western Express, Inc. and Thomas Miller

SmithAmundsen LLC

150 North Michigan Avenue, Suite 3300

Chicago, Illinois 60601

Tel: (312) 894-3200

Fax: (312) 894-3210

E-Mail: mwojciak@salawus.com

Lew R.C. Bricker, #6206641

Michael L. Wojciak, # 6325949

Attorneys for Defendants,

Western Express, Inc. and Thomas Miller

SmithAmundsen LLC

150 North Michigan Avenue, Suite 3300

Chicago, Illinois 60601

Tel: (312) 894-3200

Fax: (312) 894-3210

E-Mail: lbricker@salawus.com

mwojciak@salawus.com
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3043084 – LRB/MLW ARDC # 6325949

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Kerry Zito, )

)

Plaintiff, )

)

vs. ) Case No.

)

THOMAS MILLER and )

WESTERN EXPRESS, INC. )

)

Defendants. )

CERTIFICATE OF SERVICE

The undersigned certifies that on the 25th day of August, 2020, he served a copy of

Notice of Removal on plaintiff’s counsel via email to:

Jason Schneider

John J. Malm & Associates, P.C.

1730 Park Street, Suite 201

Naperville, IL 60563

(630) 527-4177

Jason@malmlegal.com

[x] Pursuant to 28 USC Section 1746(2),

I certify under penalty of perjury that

the foregoing is true and correct.

Executed on: August 25, 2020

/s/ Michael L. Wojciak

Lew R.C. Bricker, #6206641

Michael L. Wojciak, #6325949

Attorneys for Defendants,

Western Express, Inc. and Thomas Miller

SmithAmundsen LLC

150 North Michigan Avenue, Suite 3300

Chicago, Illinois 60601

(312) 894-3200