The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM R. ROGERS, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-322-RJD
)
MARK A. VON NIDA and CHRIS )
SLUSSER, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
This matter is before the Court on the Motion to Remand for Lack of Federal Subject
Matter Jurisdiction filed by Plaintiff William Rogers (Doc. 9). Defendants Mark von Nida and
Chris Slusser filed a timely response (Doc. 20). For the reasons set forth below, the Motion to
Remand is GRANTED.
Background
Plaintiff initiated this matter as a proposed class action in Madison County, Illinois on
February 28, 2020. In his complaint, Plaintiff alleges he was convicted, ex parte, of two traffic
infractions, without notice. In particular, Plaintiff alleges he never received a notice to appear
pursuant to 725 ILCS 5/107-12, and officials failed to issue a summons or warrant of arrest, prior
to finding him guilty. Plaintiff alleges that following entry of his convictions without proof of
service, he was made to pay a $40 “vacate fee” per conviction before his convictions were vacated.
Plaintiff contends that his ex parte convictions were not legal and, as a result, the taking of money
to vacate such convictions supports a cause of common law action for money had and received.
Plaintiff proposes the following class:
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All persons who, from March 1, 2015, through the date of final
judgment, were named as a Defendant in one or more traffic or
criminal misdemeanor cases filed in the Circuit Court of Madison
County, Illinois, and who had an ex parte finding of guilty entered
against them, and who were never served with a summons, or
arrested and presented with the charges prior to the finding of guilty,
and either paid a fine, paid a vacate fee, or both.
Defendants removed this action on March 31, 2020 (Doc. 1), asserting this Court has
federal question jurisdiction over this case pursuant to 28 U.S.C. § 1331. In particular,
Defendants assert Plaintiff alleges violations of his due process rights and challenges the
constitutionality of the application of 725 ILCS 5/107.
Plaintiff filed his motion to remand on April 2, 2020 (Doc. 9), arguing Defendants’
removal was inappropriate as this is simply an action for money had and received, and there is no
allegation that any statute is unconstitutional or being unconstitutionally applied. Plaintiff
clarifies he is only alleging that Defendants are violating 725 ILCS 5/107 by entering findings of
guilt before a defendant is legally served. Plaintiff asks that he be awarded attorney’s fees and
costs because Defendants’ removal lacked objective reasonableness.
In response, Defendants assert removal was appropriate because the allegations in
Plaintiff’s complaint call into question whether Plaintiff’s conviction for two traffic violations
without notice of the court setting or an opportunity to be present and be heard violate his due
process rights. Alternatively, Defendants argue Plaintiff’s motion should be denied because
Plaintiff attempts to avoid federal question jurisdiction through “artful” pleading.
Discussion
Defendants may remove actions brought in state court over which federal courts have
original subject matter jurisdiction. 28 U.S.C. § 1441. The removing party has the burden of
establishing federal jurisdiction. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529-32 (7th Cir.
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2004). “Courts should interpret the removal statute narrowly and presume that the plaintiff may
choose his or her forum.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Put
another way, there is a strong presumption in favor of remand. See Jones v. General Tire &
Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
Federal subject matter jurisdiction requires the presence of either diverse parties or a
federal question that “arises under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. The usual test of whether an action arises under federal law for purposes of
“federal question” jurisdiction under § 1331 is the “well-pleaded complaint” rule, which provides
generally that a case arises under federal law within the meaning of the statute only when federal
law appears on the face of a plaintiff’s complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987). As the Supreme Court has stated, “the paramount policies embodied in the
well-pleaded complaint rule … [are] that the plaintiff is the master of the complaint … and that the
plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state
court.” Id. at 398-399.
In this instance, any clarity in pleading is missing from Plaintiff’s complaint. Indeed, only
in filing his Motion to Remand was Plaintiff clear that his complaint was intended as an action for
money had and received under Illinois common law. In his complaint, however, Plaintiff
includes references to due process and questions the constitutionality of Defendants’ application
of 725 ILCS 5/107-12. Defendant is correct that underlying Plaintiff’s claim for money had and
received is necessarily the assertion that Plaintiff’s due process rights were violated when he was
convicted, ex parte, of two traffic violations. In other words, in order to find in Plaintiff’s favor, a
court must find that Plaintiff’s due process rights have been violated and that Madison County
officials are applying 725 ILCS 5/107-12 in an unconstitutional manner.
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The difficulty here arises in the fact that Plaintiff’s implication of due process rights is
recognized by both the U.S. Constitution and the Illinois Constitution (U.S. Const. amend. V;
ILCS Const., art. 1, § 2) (establishing due process protection and stating that “[n]o person shall be
deprived of life, liberty or property without due process of law nor be denied the equal protection
of the laws.”). Because of this ambiguity, it does not appear that a question of federal law
necessarily appears on the face of Plaintiff’s complaint. The crux of the instant dispute is
Defendants’ improper acceptance of fees. To the extent Plaintiff’s claim implicates due process
rights, those rights are protected by both the U.S. Constitution and Illinois Constitution. In the
absence of any purported federal claim predominating this case, Plaintiff’s original choice of
forum should be respected. Accordingly, this case shall be remanded to state court for
adjudication.
Plaintiff’s Request for Attorney Fees
In his motion to remand, Plaintiff asks the Court to order Defendants to pay his costs and
attorney fees for their “improvident removal.” Pursuant to 28 U.S.C. § 1447(c), “[a]n order
remanding [a] case may require payment of just costs and any actual expenses, including attorney
fees, incurred as the result of the removal.” The Seventh Circuit has made clear that Section
1447(c) “is not a sanctions rule; it is a fee-shifting statute, entitling the district court to make whole
the victorious party.” Garbie v. DaimlerChrysler, Corp., 211 F.3d 407, 410 (7th Cir. 2000)
(emphasis in original). “Absent unusual circumstances, courts may award attorney’s fees under
§1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The Seventh Circuit
directs courts to consider whether, “at the time the defendant filed his notice in federal court,
clearly established law demonstrated that he had no basis for removal,” likening the analysis to one
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made under the qualified immunity doctrine. Lott v. Pfizer, Inc. 492 F.3d 789, 793 (7th Cir.
2007).
Plaintiff contends Defendants’ removal was baseless and improvident, but the Court
disagrees. The face of the complaint arguably seeks to vindicate due process rights without
specifying whether the complaint refers only to rights secured by the Illinois Constitution. The
Court seriously considered whether Plaintiff unintentionally pleaded himself into federal
jurisdiction by raising a claim under the U.S. Constitution with this lack of specificity, and the
decision in his favor was a close call. As such, the Court will not award any fees under Section
1447(c).
Conclusion
Based on the foregoing, Plaintiff’s Motion to Remand for Lack of Federal Subject Matter
Jurisdiction (Doc. 9) is GRANTED. It is hereby ORDERED that, pursuant to 28 U.S.C. §
1447(c), this action be REMANDED to the Circuit Court for the Third Judicial Circuit, Madison
County, Illinois. No fees or costs are awarded. The Clerk of Court is DIRECTED to transmit a
certified copy of this Order to the clerk of the state court, and thereafter to CLOSE this case.
IT IS SO ORDERED.
DATED: October 22, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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