Kleven v. St. Joseph County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BROOKE KLEVEN, et al.,

Plaintiffs,

v. Case No. 3:21-CV-961 JD

ST. JOSEPH COUNTY, et al.,

Defendants.

OPINION AND ORDER

The plaintiffs, Brooke Kleven and Christopher Kleven (“The Klevens”), have moved for

this case to be remanded to the Indiana state court where they initially filed their lawsuit.1 (DE

36). Defendants, St. Joseph County, Jeffery Downey, Jennifer Stitsworth, Clay Township, City

of Mishawaka, and Motorola Solutions, Inc., oppose the motion.2 For the reasons stated below,

the motion to remand will be denied.

As procedural background, the Klevens initially filed their lawsuit against the Defendants

in St. Joseph County, Indiana Circuit Court in November 2021. The suit contains nine claims,

with claims I through III being federal law claims under 42 U.S.C. §1983 and claims IV through

IX being Indiana state law claims. In December 2021, the Defendants removed the case to

federal court.

1 The Court notes that the Klevens did not file a reply brief and thus this motion is ripe for adjudication.

2 The Court also notes that principal response was filed by Defendants St. Joseph County, Jeffery Downey, Jennifer

Stitsworth, and Clay Township (“the St. Joseph County defendants”) (DE 42), which was joined in full by

defendants City of Mishawaka, Great Lakes Capital Management, LLC and Bradley Company, LLC, and Motorola

Solutions. Greatlakes Capital Management and Bradley Company filed a supplemental brief (DE 44) and Motorola

Solutions also filed its own supplemental brief (DE 45). Unless otherwise specified, references to “the Defendants’

brief” will be referring to the St. Joseph County response (DE 42).

The Klevens present three arguments in favor of remand. First, they argue that the

removal procedure was defective because several of the Defendants failed to join in the Notice of

Removal.3 Specifically, the Klevens argue these Defendants failed to consent to removal of the

action by not including their e-mail addresses or phone numbers in their signature blocks on the

Notice of Removal. Second, the Klevens argue that the Notice of Removal was defective because

it did not include a copy of all processes, pleadings, and orders served upon the Defendants in

the state court proceeding. Third, the Klevens argue, that in the alternative to a complete remand,

Counts IV through IX should be severed and remanded to state court as they raise a novel issue

of Indiana state law which is best resolved by the state courts. The Court will address each

argument in turn.

A. The alleged error in the Defendants’ signature blocks does not merit remand.

The Klevens’ first argument is that some of the Defendants failed to consent to removal

as their signature blocks on the Notice of Removal did not include street and email addresses.

The Klevens’ correctly note that in order for a removal to be procedurally proper, all the

defendants in an action must timely consent to removal in writing. 28 U.S.C. § 1446(b)(2)(A); N.

Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982). Further, this written

consent must include signatures that comply with Federal Rule of Civil Procedure 11. 28 U.S.C.

§1446(a). Rule 11 requires that signatures contain the signer’s name, address, e-mail address,

and telephone number. Fed. R. Civ. P. 11(a). Additionally, the defect of failing to include other

defendants’ consent may only be cured within the 30-day time period after filing the Notice of

3 Specifically, Defendants City of Mishawaka, Clay Township, Great Lakes Capital Management, LLC d/b/a City

Plaza, LLC, Bradley Company, LLC, and Motorola Solutions, Inc.

Removal. 28 U.S.C. § 1446(b); Morgan v. Town of Georgetown, 2021 WL 2801351, *4 (S.D.

Ind. July 5, 2021).

The Klevens argue that in light of this rule, the omission of the address portions of the

signature and the passage of the 30-day time period means that not all the defendants have

consented to removal and therefore this case should be remanded. The Klevens do not cite any

specific caselaw to support their argument that a missing address line is a fatal defect. The

Klevens also do not allege they suffered any prejudice as a result of these deficient signatures.

The Defendants do not dispute the signature blocks are incomplete or that the 30-day

time period has expired. Rather, the Defendants argue that the omission of the address lines

doesn’t constitute a fatal defect. In support, the Defendants cite to Wilkinson v. United States, a

case from our sister court in the Western District of North Carolina, which held that a signature

block missing an address line nonetheless satisfied the purpose of Rule 11 and was sufficient

under § 1446(a). 724 F.Supp 1200, 1204–05 (W.D.N.C. 1989). The reasoning of Wilkinson

began with recognizing that the purpose of Rule 11’s signature requirement was to impose a

moral responsibility on the signatory to satisfy herself that upon information, knowledge and

reasonable inquiry the document being signed had both factual and legal support. Id. at 1204

(citing Fed. R. Civ. P. 11). The Wilkinson court then reasoned that the omission of the address

line did not circumvent the purpose of this Rule. Id. In light of this and considering the lack of

prejudice alleged by the plaintiff, the Court concluded that the imperfect signature was sufficient

to satisfy §1446(a). Id. at 1204–05. The Defendants argue that Wilkinson’s reasoning applies

with equal force to this case given the similar facts and lack of prejudice alleged by the Klevens.

While there are several cases from within this Circuit noting that the requirement for a

signature is strictly enforced, there does not appear to be a case on point about an allegedly

deficient signature. See e.g. Morgan, 2021 WL 2801351 at *5 (holding that one attorney signing

on behalf of all defendants without indicating who the defendants were is not sufficient to

establish consent for the unlisted parties); Komacko v. Amer. Erectors, Inc., 2013 WL 3233229

*2 (N.D. Ind. June 25, 2013) (holding that an email and letter by defendant’s counsel was

insufficient to establish consent under § 1446).

The Court’s research indicates that district courts across the country have reached

conclusions similar to the one in Wilkinson and declined to strike filings over imperfect

compliance with Rule 11. See e.g. Coleman v. Mckenzie-Kelly, 2021 WL 3673111, *4 (S.D.

Miss. Aug. 18, 2021) (holding the failure to include an address with the signature only required

direction to correct the violation in future filings and not dismissal of the action); Drake v. No

Named Respondent, 2012 WL 4955238, *2 (D. Colo. Oct. 17, 2012) (directing a plaintiff to

correct a deficient signature block but not dismissing the complaint); V.P. Music Grp., Inc. v.

McGregor, 2012 WL 1004859, *4 (E.D.N.Y. May 23, 2012) (declining to strike an answer and

counterclaim missing contact information as striking was not required by Rule 11 and striking

the documents would be wasteful of the Court and parties’ resources). Further, the Seventh

Circuit has noted that “inconsequential defects” in removal papers do not deprive a district court

of jurisdiction and cautioned against remand as the remedy for “trivial oversight[s]” in removal

papers. Walton v. Bayer Corp., 643 F.3d 994, 999 (7th Cir. 2011) (internal citations omitted).

Given the strength of the reasoning in Wilkinson, the factual similarities between this case

and Wilkinson, and the support for a Wilkinson style reasoning among other district courts, the

Court agrees with the Defendants and will not order a remand on the basis of the incomplete

signature blocks. Nonetheless, the Defendants are advised to properly format their signature

blocks in their future filings.

B. The Defendants have not failed to include a copy of all processes, pleadings, and

orders served upon the Defendants.

The Klevens’ second argument in favor of remand is that the Defendants’ failed to

include copies of several documents alongside their Notice of Removal as is required by statute.

28 U.S.C. 1446(a). Specifically, the Klevens allege that the Defendants did not attach copies of

any summonses and processes served upon the Defendants, Clay Township’s motion for

enlargement of time, and the state court’s order granting that motion for enlargement of time.

(DE 36 at 5.) The Klevens do not argue they suffered any prejudice from this alleged failure. The

Court concludes this argument is without merit.

As the Defendants point out, almost every single allegedly missing document is clearly

present in the record. This includes the summonses to every defendant and proof of service to

every defendant except Motorola (DE 14-1 at 147–57, 160–71), as well as Clay Township’s

motion and the state court order granting the motion (DE 14-1 at 187–90). Therefore the Court

finds no error by the Defendants or basis for remand relating to these documents.4

The Defendants acknowledge that their Notice of Removal does not contain a proof of

service document for the Defendant Motorola Solutions but represent to the Court that is because

no such document was ever filed in the state court docket (DE 42 at 4). They note that while the

other Defendants were served by the Sheriff of St. Joseph County, Indiana, Motorola was served

by the Sheriff of Cook County, Illinois (DE 36-2). Therefore it is possible the proof of service

4 The Klevens’ motion to remand includes, as its Exhibit A, the state court docket summary sheet, which the

Klevens indicate was included with the Notice of Removal but is insufficient to satisfy the requirements of

§1446(a). (DE 36-1). For reasons unknown to the Court, the Klevens do not seem to recognize the Defendants’

Notice of Removal filing which includes the summary sheet as well as copies of the relevant documents (DE 14-1).

was not sent by the Cook County Sheriff to the Indiana court. The Klevens do not take a position

on whether that proof of service was ever included in the state court docket (DE 36 at 5 n.1).

Given the lack of response by the Klevens, the Court has no reason to doubt the veracity of

Defendants’ representations to the Court. As such, the Court concludes the Defendants have

satisfied their §1446(a) obligations and remand is not required on that basis.

In the alternative, Motorola argues that even if certain documents were omitted that does

not preclude removal as it amounts to an inconsequential defect which does not deprive the

Court of jurisdiction over this case. In support, Motorola cites to the Seventh Circuit case of

Walton v. Bayer Corporation. 643 F.3d at 999. The Court finds Walton instructive and, in the

alternative, would agree that the allegedly missing proof of service is an inconsequential defect.

Walton itself involved the issue of the defendants failing to include summonses in their removal

papers within the 30-day deadline after initiating removal. Id. at 998. The Walton court

analogized that, much like how defects in a notice of appeal which are inconsequential —that is

“incapable of misleading or otherwise harming anyone”— do not deprive the appellate court of

jurisdiction, totally inconsequential defects in the Notice of Removal papers do not deprive the

district court of jurisdiction. Id. at 998–99. Further, the Walton court held remand would be a

disproportionate sanction for the trivial oversight in that case. Id. at 999.

The Court also notes that the Klevens’ do not cite to a legal authority indicating that

proof of service documents are essential to satisfy §1446(a). Another court within this District

has expressly held they are not. Masterman v. Healthmarkets Insurance Co., 2014 WL 12784420

*3 (N.D. Ind. June 30, 2014). Therefore Court concludes that even if the Motorola’s proof of

service was omitted from the Notice of Removal, the error would not require remand.5

C. The Klevens have not shown this case raises a novel issue of state law or that the

presence of such an issue would require remand.

The Court turns now to the Klevens’ alternative argument, that Counts IV through IX

should be severed and remanded because these claims raise a novel issue of Indiana law.

The background for the allegedly novel issue is that Indiana law previously provided

broad immunity to governmental entities and their employees for adopting, implementing,

operating, maintaining, or using an enhanced emergency communication system. (DE 36 at 6

(citing Ind. Code § 34-13-3-3(a)(19)). More recently, the Indiana legislature enacted a law

providing immunity for a political subdivision, and their employees from liability for

establishing, developing, implementing, maintaining, operating, and providing 911 services

except in the case of willful or wanton misconduct. (Id. (citing Ind. Code § 36-8-16.7-43)

(emphasis added by the Court)).

The Klevens first argue that the intersection of these two statutes, namely whether § 36-

8-16.7-43 creates an exception to the broader immunity enshrined in § 34-13-3-3(a)(19)),

constitutes a novel issue of Indiana state law which is best resolved by the Indiana state courts.

Further, that because the outcome of this issue determines how their state law claims would fare,

those claims should be remanded. Second, the Klevens argue the Court has a legal obligation to

5 The Court recognizes Walton is distinct as the missing summonses there were filed five days after the deadline,

and it appears the Motorola proof of service has yet to be filed in this case. Id. at 998. But given it is unclear the

Motorola proof of service was ever filed in this case; this distinction is irrelevant for the Court’s analysis.

decline the exercise of supplemental jurisdiction over their state law claims given the novel state

law issues.

Defendant Motorola argues that there is no novel legal issue in this case as the Indiana

courts have already decided this issue in the case of Howard County Sheriff’s Dept’ et al. v.

Duke. 172 N.E.3d 1265 (Ind. Ct. App. 2021) (transfer denied sub. nom. Howard Cty. Sheriff v.

Duke, 175 N.E.3d 273 (Ind. 2021)). The St. Joseph County defendants also argue that the

Klevens have not cited any case law which would require the Court to remand this case solely

because a novel issue of state law may be at play. The Court agrees with both arguments and will

deny the request to sever and remand the state law claims.

To begin, the Court finds that Howard County squarely addresses the issue presented by

the Klevens and thus there is no novel issue of state law at play. In Howard County the Indiana

Appellate Court had to decide whether the broad immunity of §34-13-3-3(a)(19) was limited by

the enactment of § 36-8-16.7-43. Id. at 1270–71. The court held that it did, and the broad

immunity of §34-13-3-3(a)(19) was precluded in cases where the plaintiff could establish willful

or wanton misconduct. Id. at 1272. The Indiana Supreme Court subsequently denied transfer of

the case. 175 N.E.3d 273. In light of the Howard County decision, the Klevens’ proposed novel

legal question is no longer novel and therefore is no obstruction to the Court’s continued exercise

of jurisdiction over this case.

The Court will separately note that even if the novel legal issue remained, it would have

still been appropriate to retain supplemental jurisdiction. As a preliminary matter, it is a matter of

judicial discretion whether to decline to exercise supplemental jurisdiction because the case

involves a novel state law claim. 28 U.S.C. § 1367(c)(1). The Klevens cited to two cases in

support of their argument for remand; Cox v. City of Indianapolis, 2012 WL 2327690 (S.D. Ind.

June 19, 2012), and Wentzka v. Gellman, 991 F.2d 423 (7th Cir. 1993). The issue with these

cases is that they deal with situations where the federal law claims had been extinguished and

there were only state law claims remaining before the federal court. Wentzka, 991 F.2d at 424;

Cox, 2012 WL 2327690 at *1. This is a crucial distinction as the Klevens’ claims under 28

U.S.C. § 1983 are still properly before this Court and those claims involve the same facts as their

state law claims.

Due to the common facts underlying both sets of claims, a partial remand would in effect

be forcing the defendants to maintain the same lawsuit in two different courts, with different sets

of deadlines governing the numerous obligations that presenting their defense entails. The

Supreme Court has admonished district courts contemplating whether to remand an action to

state court to consider the “values of judicial economy, convenience, fairness, and comity.” City

of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 172–73 (1997) (international quotation marks

and citation omitted).

In applying these values to the instant case, it is an easy call that judicial economy,

convenience, and fairness are best served by the Court retaining the case. Retention means the

parties are only required to litigate this matter in one court with one common set of deadlines and

controlling rulings. This would most effectively conserve judicial and party resources and keep

the litigation process as simple and coordinated as possible. While comity may be better served

by allowing an Indiana state court to handle a novel issue of state law, that value is marginal at

best. The Court would be just as capable of performing the straightforward statutory

interpretation work required of the issue as the Indiana state courts would, even if the interests of

comity and federalism might favor allowing the state judiciary to resolve novel issues in their

state’s laws. See generally Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490,

495 (7th Cir. 1993) (generally explaining the doctrine of comity). Ultimately, the marginal

comity interest weighing in favor of remand would be outweighed by the weight of the other

concerns that firmly favor this Court retaining jurisdiction. Therefore, the Court will deny the

Kelvens’ alternative request to sever their case and remand their state law claims.

D. Conclusion

Accordingly, the Klevens’ amended motion to remand is DENIED (DE 36) and their

motion to remand is DENIED as moot (DE 35).6

SO ORDERED.

ENTERED: July 5, 2022

/s/ JON E. DEGUILIO

Chief Judge

United States District Court

6 The Klevens original motion to remand (DE 35), which raises the same legal arguments as the amended motion, is

moot in light of the Court’s resolution of the amended motion on the merits.