United States District Court, Northern District of Illinois, E. D
October 20, 1980
PEOPLE OF THE STATE OF ILLINOIS AND THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFFS,
THE SANITARY DISTRICT OF HAMMOND, A MUNICIPAL CORPORATION; JOSEPH A. PERRY; THOMAS C. CONLEY; GILBERT DELANEY; THEODORE DUNAJESKI; AND THE CITY OF HAMMOND, INDIANA, A MUNICIPAL CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
This complaint alleges that the Sanitary District of
Hammond, Indiana (Hammond) unlawfully dumped raw sewage into
Lake Michigan causing injury to the People of the State of
Illinois. The five-count Complaint was originally filed in the
Circuit Court of Cook County and then removed by Hammond.
Count III is based on the federal common law of nuisance,
Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31
L.Ed.2d 712 (1972), and the remaining counts are based on
Illinois law. The same facts underlie each theory of recovery.
The matter is now before the Court on plaintiffs' motion to
Plaintiffs argue that although Count III alone is within the
jurisdiction of a federal court, the case is not removable
under 28 U.S.C. § 1441(c) as interpreted in American Fire and
Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 705
(1951), because Count III is not separate and independent from
the state law claims. In Finn, the plaintiff had joined three
defendants alternatively, alleging one was liable. Two of the
defendants were diverse in citizenship to the plaintiff, but
the third was not. The diverse defendants removed the case to
federal court under § 1441(c), alleging plaintiff's claims
against them were separate and independent. The case went to
trial, but the Supreme Court ultimately held that the removal
had been improper because the complaint alleged a single wrong
and the alternative claims of liability were not separate and
independent within the meaning of § 1441(c).
Plaintiffs' reliance on Finn is misplaced. Although the
complaint alleges a single wrong, there is no need to reach the
issue of § 1441(c). The Finn Court had to address it because
that case as a whole was not within the original jurisdiction
of a federal court. There were non-diverse parties and no
federal question was presented. Here, on the other hand, Count
III is clearly within federal jurisdiction and the remaining
counts come within pendent jurisdiction, since they arise from
a common nucleus of operative
fact. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966).
Furthermore, plaintiffs have adopted a too narrow
interpretation of the statutory removal scheme. They argue
essentially that whenever federal and state law claims are
joined, only § 1441(c) is applicable. However, that contention
ignores the broader provisions of § 1441(a) and (b). Paragraph
(a) provides that any civil action within the original
jurisdiction of a federal district court is removable (except
as otherwise expressly provided by Congress). Paragraph (b)
provides that citizenship of the parties has no bearing on the
removability of a claim arising under federal law (but when
jurisdiction is based on diversity, a local defendant cannot
remove). Paragraph (c) provides still another method for
removal which is generally utilized to invoke diversity
jurisdiction, but it is also applicable to federal question
jurisdiction cases. It was only this final method in (c) that
was restricted in Finn. However, since this case was properly
removable under § 1441(a) and (b), the limitations of Finn are
not applicable. See Hazel Bishop, Inc. v. Perfemme, Inc.,
314 F.2d 399 (2d Cir. 1963); Iodice v. Calabrese, 291 F. Supp. 592
(S.D.N.Y. 1968); 1A Moore's Federal Practice ¶ 0.163[4.-5]
at 271 (2d ed. 1979); 14 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure, § 3724 at 648 (1976).
Accordingly, plaintiffs' motion to remand is denied.
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