Thompson v. Harbor Freight Tools USA, Inc.

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
XAVIER THOMPSON,
Plaintiff,
v.
HARBOR FREIGHT TOOLS USA, INC.,
FERRELLGAS PARTNERS L.P.,
CIRCLE K HOLDINGS, INC.,
MAC’S CONVENIENCE STORES, LLC, and
JOHN DOE DEFENDANTS 1-5,
Defendants.
Case No. 25-cv-01925-JPG
MEMORANDUM AND ORDER
This case is before the Court after Defendant Harbor Freight Tools USA (“Harbor
Freight”) filed a Notice of Removal (Doc. 1). The Court has found two defects in the notice of
removal that may require it to remand the case. First, the notice of removal does not adequately
plead the citizenship of the parties. In light of the Seventh Circuit Court of Appeals admonitions,
see Page v. Democratic Nat’l Comm., 2 F.4th 630, 634 (7th Cir. 2021) (citing Great S. Fire
Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)); Foster v. Hill, 497 F.3d 695, 696–97 (7th
Cir. 2007), the Court has undertaken a rigorous initial review of pleadings to ensure that
jurisdiction has been properly pled. See Page, 2 F.4th at 634 (federal courts “must make their
own inquiry to ensure that all statutory requirements are met before exercising jurisdiction”);
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (noting courts’ “independent obligation to
determine whether subject-matter jurisdiction exists, even when no party challenges it”). The
Court has noted that the notice of removal does not adequately plead the citizenship of the
parties.
Two of the defendants in this action, Ferrellgas Partners and Mac’s Convenience Stores,
Case 3:25-cv-01925-JPG Document 10 Filed 10/28/25 Page 1 of 4 Page ID
#<pageID>

2
are unincorporated associations. For the Court to determine if complete diversity exists, it must
examine the citizenship of each member of the unincorporated associations. Page, 2 F.4th at 635;
see Americold Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 381–82, (2016); Belleville
Catering Co. v. Champaign Mkt. Place, LLC, 350 F.3d 691, 692 (7th Cir. 2003). Therefore, the
relevant pleading must affirmatively allege the specific states of citizenship of each member of
the unincorporated association and “the citizenship of unincorporated associations must be traced
through however many layers of partners or members there may be.” Meyerson v. Harrah’s E.
Chi. Casino, 299 F.3d 616, 617 (7th Cir. 2002); see White Pearl Inversiones S.A. (Uruguay) v.
Cemusa, Inc., 647 F.3d 684, 686 (7th Cir. 2011); Guar. Nat’l Title Co. v. J.E.G. Assocs., 101
F.3d 57 (7th Cir.1996) (essential to trace the citizenship of investors through all levels, if, say,
one LP invests in another). For Ferrellgas Partners, which is a limited partnership, the pleading
must allege the citizenship of every member of the partnership, whether general or limited
members. For Mac’s Convenience Stores, which is a limited liability company, the pleading
must allege the citizenship of every member of the limited liability company. Harbor Freight’s
notice of removal does not satisfy this requirement. Since the notice of removal does not plead
the citizenships of each member of Ferrellgas Partners and Mac’s Convenience Stores, it does
not adequately plead the citizenship of the parties.
Second, the notice of removal does not indicate that the other defendants in the case have
consented to the removal. The law is clear that when a case is removed from state court to
federal court under 28 U.S.C. § 1441(a), “all defendants who have been properly joined and
served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2); McMahon
v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir. 1998), overruled in part on other grounds
Case 3:25-cv-01925-JPG Document 10 Filed 10/28/25 Page 2 of 4 Page ID
#<pageID>

3
by Kaiser v. Johnson & Johnson, 947 F.3d 996 (7th Cir. 2020). However, it is not enough for the
removing defendants to say in their notice simply that all the other defendants do not object to
removal. Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994), overruled in part on other
grounds by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). All
defendants must join in the motion by supporting it in writing. Id. The failure of even one served
defendant to timely consent to removal in writing renders a notice of removal defective and
subject to remand unless the removing defendants explain the absence of the missing defendant.
N. Ill. Gas Co. v. Airco Indus. Gases, A Div. of Airco, Inc., 676 F.2d 270, 273 (7th Cir. 1982).
The failure to explain the absence of a defendant’s written consent to the notice of removal can
be cured by amending a petition to provide a sufficient reason for that absence. N. Ill. Gas, 676
F.2d at 273 (amended notice explained that missing defendant was nominal party); see 28 U.S.C.
§ 1653. Based on the record in the St. Clair County Circuit Court, it appears that at least one
other defendant, Mac’s Convenience Stores, has been served. Mac’s Convenience Stores has not
joined in or consented to this removal, and Harbor Freight has failed to provide a reason for their
absence. Therefore, the notice of removal does not comply with 28 U.S.C. § 1446(b)(2).
The Court ORDERS that Harbor Freight shall have up to and including November 24,
2025, to amend the faulty pleading to correct the jurisdictional defects and to provide a sufficient
reason why Mac’s Convenience Store, and any other properly joined and served defendants,
have not consented to the removal. Failure to amend the faulty pleading may result in remand of
this case for lack of subject matter jurisdiction. Amendment of the faulty pleading will satisfy
this order. Defendant is directed to consult SDIL-LR 15.1 regarding amended pleadings and need
not seek leave of Court to file such amended pleading.
Case 3:25-cv-01925-JPG Document 10 Filed 10/28/25 Page 3 of 4 Page ID
#<pageID>

4
IT IS SO ORDERED.
DATED: 	October 27, 2025
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
Case 3:25-cv-01925-JPG Document 10 Filed 10/28/25 Page 4 of 4 Page ID
#<pageID>