Landry v. Molina et al

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANK LANDRY, AS ADMINISTRATOR OF
THE ESTATE OF ZACHARY LANDRY,
Plaintiff,
v.
HOMERO MOLINA,
OM TRANSPORTATION, INC., and
EL TRANSPORT, LLC,
Defendants,
and
TRISURA SPECIALTY INSURANCE
COMPANY,
Citation Respondent.
Case No. 25-cv-01965-JPG
MEMORANDUM AND ORDER
This case is before the Court on Plaintiff Frank Landry’s Motion to Remand (Doc. 9).
The motion concedes that removal of the citation proceeding was proper but argues that the
Court must remand the underlying tort action to the Circuit Court for the Twentieth Judicial
Circuit, St. Clair County, Illinois. In addition, it asks the Court to award Plaintiff his fees and
costs pursuant to 28 U.S.C. § 1447(c). Citation Respondent Trisura Specialty Insurance
Company (“Trisura”) filed a response to the motion (Doc. 14).
I. 	BACKGROUND
This case involves two different proceedings: (1) the underlying lawsuit; and (2) the
citation of assets. The underlying lawsuit—Frank Landry, as Administrator of the Estate of
Zachary Landry v. Homero Molina, Jr., OM Transportation, Inc., and El Transport, LLC—was
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 1 of 12 Page ID
#<pageID>

2
filed in the St. Clair County Circuit Court on December 20, 2024 (“the Landry Suit”). The
complaint alleged damages under the Illinois Wrongful Death Act related to an accident between
the vehicle of Decedent Zachary Landry and a commercial tractor-trailer driven by Defendant
Homero Molina (“Molina”), in the course of his employment with Defendant OM Transportation
(“OM”) and/or Defendant El Transport. At the time of the accident, OM was insured under a
policy issued by Trisura. On April 2, 2025, the St. Clair County Circuit Court entered a default
judgment of $25,424,044.20 in favor of Plaintiff and against Defendants, jointly and severally.
On September 24, 2025, Plaintiff served Trisura with a “Citation to Discover Assets of a
Third Party” and “Citation Notice” (“the Citation Proceeding”). The following day, Trisura filed
a declaratory judgment action in the United States District Court for the Southern District of
Texas asserting that it owes no duty of defense or indemnity or any other obligation with respect
to the allegations or the judgment in the Landry Suit. On October 24, 2025, Trisura removed
both the Landry Suit and the Citation Proceeding to this Court, arguing that the proceedings are
within the Court’s original diversity jurisdiction. Subsequently, on October 31, 2025, Trisura
filed its answer to the Citation to Discover Assets. In its answer, Trisura denies that it has or had
in its possession, custody, or control, on the date of service of the Citation to Discover Assets or
as of the date of filing its answer, any personal property or monies belonging to, or that may
become due to, OM or Molina.
II. 	ANALYSIS
A. Removal of the Citation Proceeding:
The Court starts by determining whether Trisura properly removed the Citation
Proceeding. Plaintiff does not dispute that removal of the Citation Proceeding was proper.
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 2 of 12 Page ID
#<pageID>

3
However, in light of the Seventh Circuit’s admonitions, the Court will complete its own analysis.
See 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”).
28 U.S.C. § 1441(a) allows removal of “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction.” “The statute has long been
interpreted to allow removal only of ‘independent suits’ but not ancillary or ‘supplementary’
proceedings.” Travelers Prop. Cas. v. Good, 689 F.3d 714, 724 (7th Cir. 2012). This is a “judge-
made limitation” that stems “from the civil-action requirement.” 14C WRIGHT & M ILLER ’S
F EDERAL P RACTICE & P ROCEDURE § 3721.1 (Rev. 4th ed. 2018). “The restriction is premised on
the wastefulness of having a satellite element of a case pending in federal court when the
principal claims are being litigated in state court.” Id. “Citation proceedings under 735 ILCS 5/2-
1402 may or may not be independent, depending ‘on the context of each case.’” Jimenez v.
Kiefer, 100 F.4th 931, 937 (7th Cir. 2024). A citation proceeding is an independent suit if two
requirements are met. See Good, 689 F.3d at 725. First, the citation proceeding must include a
new party. Id. Second, it must raise a new and distinct disputed issue. Id.
Here, the Citation Proceeding against Trisura is an independent, removable action. It
includes a new and different party—Trisura—that was not party to the Landry suit, and it
presents a new issue of law and fact. Trisura filed a declaratory judgment action and an answer to
the Citation to Discover Assets taking the position that it is not holding any property or monies
belonging to the judgment debtors. Trisura’s decision to contest coverage establishes “a new
dispute governed by law distinct from the underlying . . . action and based on different facts” and
makes the Citation Proceeding removable. Jimenez, 100 F.4th at 938 (quoting Rizvi v. Allstate
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 3 of 12 Page ID
#<pageID>

4
Corp., 833 F.3d 724, 727 (7th Cir. 2016)). Because Trisura “answered that it [is] not obligated to
pay anything,” there is only one thing remaining for the Court to do. Id. That is, adjudicate
whether Trisura is, contrary to its denial, “holding assets of the judgment debtor[s] that should be
applied to satisfy the judgment.” Id. (citing FirstMerit Bank, N.A. v. McEnery, 168 N.E.3d 704,
709 (Ill. App. Ct. 2020)). This dispute involves “new issues of fact and law” that were not raised
in the Landry suit, and therefore, is “an independent, removable action.” Id.
In addition, the Citation Proceeding is within the Court’s original jurisdiction. A federal
court has original diversity jurisdiction where the parties are completely diverse and where more
than $75,000, exclusive of interests and costs, is in issue. 28 U.S.C. § 1332(a); Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806). In determining whether the parties are completely
diverse, the Court disregards the citizenship of nominal parties. Jimenez, 100 F.4th at 938. “A
defendant is nominal if: (1) the plaintiff does not seek relief from him; or (2) there is no
reasonable basis for predicting that [he] will be held liable.” Id. (internal quotation marks and
citations omitted). In this case, both requirements for diversity jurisdiction are met. First, the
amount in controversy clearly exceeds $75,000. Plaintiff is attempting to collect a default
judgment in the amount of $25,424,044.20. Second, there is complete diversity of citizenship
between the non-nominal parties. Plaintiff is a citizen of Illinois, Trisura is a citizen of
Oklahoma, and OM and Molina are citizens of Texas.1
The Court finds that the Citation Proceeding is a civil action that may be removed under
28 U.S.C. § 1441 and is within the Court’s original diversity jurisdiction. As such, it concludes
1 The Court is not convinced that El Transport is a party to the Citation Proceeding. The Citation to Discover Assets
only lists OM and Molina as judgment debtors whose assets it seeks to discover. However, even if El Transport is a
party to the Citation Proceeding, it is only a nominal one. Plaintiff has settled with El Transport and does not seek to
discover its assets.
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 4 of 12 Page ID
#<pageID>

5
that Trisura properly removed the Citation Proceeding.
B. Remand of the Landry Suit:
Since the Court has determined that Trisura properly removed the Citation Proceeding, it
must decide whether the Landry Suit should be severed and remanded to the St. Clair County
Circuit Court. The Court starts by addressing the issue of severance. Plaintiff argues that, since
the Citation Proceeding reaches the level of a “civil action” as defined by § 1441, it is removable
separate and apart from the Landry Suit. Trisura, on the other hand, asks the Court to apply an
all-or-nothing approach. It argues that, where a citation proceeding is sufficiently independent to
reach the level of a “civil action” that may be removed under § 1441, removal of the citation
proceeding either removes the whole action (if diversity is satisfied) or none of it.
The Court declines to take the all-or-nothing approach suggested by Trisura. Instead, it
holds that, if a citation proceeding is sufficiently independent to constitute a “civil action” under
§ 1441, the proceeding can be removed separate and apart from the underlying suit. It reaches
this conclusion for two reasons. First, the all-or-nothing approach is contrary to both the text of
the removal statute and the federal case law interpreting the statute. 28 U.S.C. § 1441(a) allows a
defendant to remove “any civil action.” The statute does not define “civil action,” but there are
sound reasons to believe that “civil action” can mean less than an entire case.
To begin, if Congress wanted to require that an entire case be removed, it could have
used the word “case” instead of “civil action.” It used the term “case” in other nearby removal
statutes. See, e.g., 28 U.S.C. § 1447(a) (“In any case removed from a State court, the district
court may issue all necessary orders and process to bring before it all proper parties whether
served by process issued by the State court or otherwise.”); 28 U.S.C. § 1448 (“In all cases
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 5 of 12 Page ID
#<pageID>

6
removed from any State court to any district court of the United States in which any one or more
of the defendants has not been served with process . . . such process or service may be completed
. . . .”). But in § 1441, it chose to use the term “civil action.” This indicates that “civil action” has
a different meaning than “case.” See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”).
Moreover, the removal statute contemplates that a claim may be removed to federal court
while other claims remain before the state court. 28 U.S.C. § 1441(c) anticipated the scenario
where a defendant removes a civil action to federal court that includes claims that arise under
federal law and claims that are not within the original or supplemental jurisdiction of the district
court. In this situation, § 1441(c) allows the defendant to remove the entire civil action if it
“would be removable without the inclusion of the claim over which the court has no
jurisdiction.” Brooks v. Diserens, No. 3:24-CV-01848-NJR, 2025 WL 899009, at *5 (S.D. Ill.
Mar. 25, 2025) (citing 28 U.S.C. § 1441(c)(1)). However, it requires the district court to “sever
from the action all claims over which it has no jurisdiction and remand those claims to the state
court from which the action was removed.” Id. (citing 28 U.S.C. § 1441(c)(2)). In other words,
the federal court hears the claims arising under its original federal question jurisdiction, and the
state court hears the state law claims over which the federal court has no jurisdiction. The fact
that “the removal statutes explicitly contemplate the severance of claims between the federal and
state courts” indicates “that a defendant is not subject to an all-or-nothing removal requirement.”
Arnold Crossroads, LLC v. Gander Mountain Co., 751 F.3d 935, 945 (8th Cir. 2014) (Smith, J.,
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 6 of 12 Page ID
#<pageID>

7
dissenting).
Finally, “federal courts have broadly construed the term ‘civil action.’” 14C WRIGHT &
M ILLER ’ S F ED. P RAC . & P ROC . § 3721.1 (Rev. 4th ed. 2018). It has been defined to include
“proceedings for garnishment or condemnation, and actions to compel arbitration or to confirm
or vacate an arbitration award.” Id. Interpreting the term “civil action” to allow a defendant to
remove less than an entire case comports with this broad construction. See Arnold Crossroads,
751 F.3d at 946 (Smith, J., dissenting).
Second, there is extensive authority that suggests an independent suit is removable apart
from the original case. Leading federal practice commentary observes that:
There is also a sensible judge-made limitation—stemming from the civil-action
requirement—that proceedings that are ancillary to an action pending in state
court cannot be removed separately from the main claim. This restriction is
premised on the wastefulness of having a satellite element of a case pending in
federal court when the principal claims are being litigated in state court. . . .
A few cases have drawn a distinction between supplemental proceedings that are
a mere mode of execution or relief, inseparably connected with an original
judgment or decree in a state-court proceeding and therefore not removable, and
those supplemental proceedings that involve an independent controversy with a
new and different party. The latter are removable. . . .
14C WRIGHT & M ILLER ’ S F ED. P RAC . & P ROC . § 3721.1 (Rev. 4th ed. 2018). Wright & Miller
indicates that a supplemental proceeding that involves “an independent controversy with a new
and different party” may be “removed separately from the main claim.” Id. Case law within the
Seventh Circuit appears to support this interpretation. See, e.g., Good, 689 F.3d at 726
(determining that a citation proceeding that featured a “new party, a new and distinct legal claim,
new issues of fact and law, and . . . a realignment of the original litigants . . . became for all
intents and purposes a separate case,” even though it originated “in the underlying suit”) Fed.
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 7 of 12 Page ID
#<pageID>

8
Sav. & Loan Ins. Corp. v. Quinn, 419 F.2d 1014, 1018 (7th Cir. 1969) (stating that “a proceeding
which is the equivalent of a common law suit or equitable action to secure relief from an existing
judgment, is an independent action and, hence, removable . . . regardless of whether or not the
proceeding sought to be removed is independent in form”); Rizvi, 833 F.3d at 727 (concluding
that the case involved “a citation proceeding that has become separate from the underlying suit
and needs its own basis for jurisdiction”); Robertson v. Franco, No. 1:10-CV-01663-TWP, 2011
WL 2133553, at *2 (S.D. Ind. May 25, 2011) (finding that removal of a complaint but not the
underlying delinquency proceeding would be appropriate if the complaint was a “separate and
independent” action).
Further, numerous federal courts have permitted a defendant to remove a supplemental
proceeding that involves an independent controversy with a new and different party even though
the underlying action remained pending in state court. See, e.g., GE Betz, Inc. v. Zee Co., 718
F.3d 615, 623–25 (7th Cir. 2013) (finding that a judgment enforcement proceeding was
“sufficiently independent from the underlying state-court proceedings to give the federal court
jurisdiction under § 1441(a),” even though the underlying suit remained “pending in the state
court of appeals”); Swanson v. Liberty Nat. Ins. Co., 353 F.2d 12, 13 (9th Cir. 1965)
(determining that the “garnishment facet of the proceedings” was properly removed to federal
court because “the garnishment issue was an independent case or controversy”); Stark-Romero v.
Nat’l R.R. Passenger Co., 763 F. Supp. 2d 1231, 1236 (D.N.M. 2011) (remanding the plaintiff’s
wrongful death claims to the state court for lack of subject matter jurisdiction but retaining the
intervenors’ wrongful death claims in federal court because they were subject to independent
removal as a separate civil action).
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 8 of 12 Page ID
#<pageID>

9
Because the Court has determined a citation proceeding may be removed separate and
apart from the underlying suit, it must decide whether the Landry Suit should be remanded to the
St. Clair County Circuit Court. The Court finds that remand is proper here because Trisura is not
a defendant in the Landry Suit. 28 U.S.C. § 1441(a) allows only a defendant to remove a civil
action. Trisura argues that it is a defendant to the Landry suit because of the Seventh Circuit’s
holding in GE Betz, 718 F.3d 615. The Court agrees that Trisura is treated as a defendant for the
purposes of the Citation Proceeding. But it does not believe that Trisura is a party to the Landry
Suit.
The Seventh Circuit’s decision in GE Betz focused on one narrow issue: is a third-party
citation respondent in a citation action properly characterized as a “defendant” under 28 U.S.C. §
1441? Id. at 629. The court answered this question in the affirmative for two reasons. First, it
defined “defendant” in § 1441(a) as “a party whose interests are in opposition to the plaintiff’s
interests.” Id. It then examined “the procedural rights, the substantive rights, and the remedies to
which parties to a citation action are entitled,” and found that the interests of a third-party
citation respondent in an Illinois citation action are directly averse to the interests of the
judgment creditor. Id. at 627, 630. Second, it applied the “famous duck test” which says, “if it
walks like a duck, swims like a duck, and quacks like a duck, it’s a duck.” Id. at 630 (quoting
Lake v. Neal, 585 F.3d 1059, 1059 (7th Cir. 2009)). “[I]f a participant in a judicial proceeding
has all the qualities of a defendant, then inductive reasoning tells us that the participant must, in
fact, be a defendant.” Id. “A third-party citation respondent is initially served with notice of the
action against it; it is in direct opposition to the party bringing the action (the judgment creditor);
it has the opportunity to vindicate its rights at trial; and it has the right to appeal any adverse
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 9 of 12 Page ID
#<pageID>

10
judgment against it.” Id. In other words, “a third-party citation respondent in Illinois has all of
the qualities traditionally associated with a defendant.” Id. Given the narrow issue before the
court and the court’s focus on how a citation respondent functions in an Illinois citation
proceeding, the Court must reject Trisura’s argument that the Seventh Circuit’s holding in GE
Betz makes it a defendant to the Landry Suit.
In addition, the Court is troubled by the fact that Trisura is talking out of both sides of its
mouth. Trisura argues that it is a new and independent party that supports removal of the Citation
Proceeding under § 1441, but in the same breath, alleges that it is a party to the Landry Suit.
These arguments are clearly contradictory. The reason that the Citation Proceeding is a
removable civil action is because Trisura is a new and different party with a distinct legal
controversy. If Trisura was a party to the Landry Suit, the Citation Proceeding would not be an
independent, removable action. Instead, the Citation Proceeding would be a purely ancillary
matter to the Landry Suit, and 28 U.S.C. § 1441 would bar removal to federal court.
The Court finds that the Citation Proceeding is removable separate and apart from the
Landry Suit. In addition, it concludes that Trisura’s removal of the Landry Suit was improper
because it is not a defendant in the action. Accordingly, the Landry Suit must be severed from
the Citation Proceeding and remanded to the St. Clair County Circuit Court.
C. Fees and Costs Under 28 U.S.C. § 1447:
Now that the Court has determined that remand is proper, it must address Plaintiff’s
request for costs and fees under 28 U.S.C. § 1447(c). Section 1447(c) states, in pertinent part,
“[a]n order remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal.” “Absent unusual circumstances,
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 10 of 12 Page ID
#<pageID>

11
courts may award attorney’s fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005).
This rule serves to “deter removals sought for the purpose of prolonging litigation and imposing
costs on the opposing party, while not undermining Congress’ basic decision to afford
defendants a right to remove as a general matter, when the statutory criteria are satisfied.” Id. at
140.
Here, the Court believes that Trisura had an objectively reasonable basis for seeking
removal of the Landry Suit. Trisura removed both the Citation Proceeding and the Landry Suit
based on its good faith belief that, where a citation proceeding is sufficiently independent to
reach the level of a “civil action” that may be removed under § 1441, removal of the citation
proceeding either removes the whole action (if diversity is satisfied) or none of it. The Court has
not found a case within the Seventh Circuit that rejects this argument. In fact, it has been hard
pressed to find a case within any circuit that rejects it. It appears that Plaintiff did not find one
either as he fails to cite any in his brief. Since this is an issue of first impression, and Trisura had
a good faith basis to believe that the Landry Suit was removable, the Court declines to award
Plaintiff his costs and fees under 28 U.S.C. § 1447(c).
III. 	CONCLUSION
The Court finds that: (1) Trisura properly removed the Citation Proceeding; and (2) the
Landry Suit must be severed from the Citation Proceeding and remanded to the St. Clair County
Circuit Court. However, it declines to award Plaintiff his costs and fees because Trisura had an
objectively reasonable basis to remove the Landry Suit. Accordingly, the Court GRANTS in part
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 11 of 12 Page ID
#<pageID>

12
and DENIES in part Plaintiff Frank Landry’s Motion to Remand (Doc. 9). It REMANDS the
Landry Suit to the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, and
RETAINS the Citation Proceeding.
IT IS SO ORDERED.
DATED: February 3, 2026
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
Case 3:25-cv-01965-JPG Document 20 Filed 02/03/26 Page 12 of 12 Page ID
#<pageID>