N.D. Ill. Holds Removal Untimely; Indicates that “Paper or Other Order” Exception Applies Only to Those Generated in the Same Suit

Per G.M. Sign, Inc. v. Global Shop Solutions, Inc., Not Reported in 430 F.Supp.2d 826 (N.D. Ill. May 9, 2006):

The principle question in the instant case, and in similar TCPA [Telephone Consumer Protection Act , 47 U.S.C. § 227] claims, is whether Congress has exercised its right to exclude federal jurisdiction over private claims under this act. Defendant argues that prior to the Seventh Circuit's decision in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th Cir.2005), the general consensus was that Congress had excluded federal jurisdiction, and therefore removal would have been in bad faith, against authority, and risked the imposition of sanctions. Therefore, defendant did not remove when it was first served with the lawsuit, but did so on November 21, 2005, 32 days after the October 20, 2005 decision in Brill. It argues that removal is timely under the "order or other paper" exception of § 1446.

If the action was originally removable, defendant's present removal is untimely. Both parties agree in this case that all the requirements for diversity jurisdiction have been met, and existed at the time of the initial pleading. Because the TCPA is a federal statute, ordinarily TCPA claims would "arise under" the laws of the United States.

In the instant case, the "order or other paper" exception does not apply, because defendant could have removed the action originally. Jurisdiction over TCPA claims in federal court was not expressly prohibited by either the TCPA or Title 28 of the United States Code. Some of the language in the TCPA, and in the act's legislative history, had led courts in this and other jurisdictions to question Congress's intent regarding federal jurisdiction. However, that does not lead to an inevitable conclusion that seeking removal in the instant case would have been improper before the Seventh Circuit had ruled on the matter. When the instant suit was initiated, there was no binding precedent contrary to removal. Whether federal courts could hear TCPA claims in a diversity suit remained an open question.

. . .

Because this case was removable as stated in the pleadings, this court need not decide whether the Seventh Circuit's decision in Brill was an "order or other paper." However, this court would be inclined to follow the majority of cases interpreting the statute, which hold that the "order or other paper" must be generated in the same suit.