The opinion of the court was delivered by: Getzendanner, District Judge:
This action is before the court on plaintiff's motion to remand the
case to the state court from which it was removed under
28 U.S.C. § 1447 (c). For the reasons stated below, the court denies
this motion. Further, the court drops Indiana Harbor Belt Railroad
Company ("IHB") as a defendant, under Fed.R.Civ.P. 21.
The following facts appear from the pleadings. Consolidated Rail Co.
("Conrail") owned, operated, installed, and maintained railroad tracks
and rights-of-way in the City of Hammond, Indiana, long prior to and on
or about March 19, 1983. IHB operated trains upon Conrail's tracks prior
to and on or about March 19, 1983, and was also retained by Conrail
periodically to inspect and to maintain the rights-of-way. A third party,
Chicago, Milwaukee, St. Paul and Pacific Railroad ("Chicago") also
operated trains upon Conrail's tracks prior to and on or about March 19,
1983. On that date the plaintiff, Robert M. Render, then twelve (12)
years old, was struck by a train while playing on Conrail's
right-of-way. Subsequent to and as a result of the incident, plaintiff's
foot was amputated.
Plaintiff initiated this cause of action in Circuit Court of Cook
County, Illinois, naming Conrail as the sole defendant in a negligence
action. Count I alleged numerous negligent and careless acts and
omissions; Count II alleged violation of maintenance statutes. Defendant
removed the cause to federal district court, based upon diversity and a
claim in excess of $10,000. Subsequently, plaintiff moved for leave to
file amended complaints in which he named as additional defendants
Chicago and IHB, a nondiverse party. Plaintiff's stance is that the
addition of IHB destroys diversity, depriving the court of subject matter
jurisdiction and calling for remand. Both Conrail and IHB assert that IHB
should be dis
missed as a defendant in order to preserve federal jurisdiction.
If at any time prior to final judgment it appears that the case was
removed improvidently and without jurisdiction, the district court shall
remand the case. 28 U.S.C. § 1447 (c). Professor Moore states that an
indispensable party can be joined even if its joinder would destroy
diversity and necessitate remand. 1A Moore's Federal Practice ¶
0.161[1.-3] (1983). In this case, the court finds that IHB is a proper,
but not an indispensable, party. Plaintiff has not argued that IHB is an
indispensable party, and the court's independent evaluation is that IHB
cannot be considered an indispensable party. While in practical terms it
would be desirable for all three railroad defendants to be involved in
one suit, the court does not foresee any prejudice to plaintiff resulting
from a judgment rendered in IHB's absence. As to IHB, its memorandum
clearly does not claim prejudice.
[1.2] Since IHB is not an indispensable party, the question arises
whether the plaintiff may amend his complaint after removal to add a
non-indispensable defendant whose citizenship destroys the diversity
jurisdiction which existed at the time of removal. There are two lines of
cases on this point. See Boyd v. Diebold, 97 F.R.D. 720, 721 (E.D.Mich.
1983) (citing cases). Certain courts have indicated that under some
circumstances a plaintiff may amend his complaint to add non-diverse
defendants who are proper but not indispensable parties. See e.g., Desert
Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir. 1980);
Shaw v. Munford, 526 F. Supp. 1209 (S.D.N.Y. 1981); Stanhope v. Ford
Motor Credit Co., Inc., 483 F. Supp. 275 (W.D.Ark. 1980). The second line
of cases relies on the concept that once an action has been properly
removed, the plaintiff may not do anything to defeat federal jurisdiction
and to force a remand to state court. Courts in the second line of cases
do not permit plaintiffs to amend complaints to add non-diverse,
non-indispensalZle defendants. E.g., In Re Merrimack Mut. Fire Ins. Co.,
587 F.2d 642, 647, n. 8, (5th Cir. 1978) (remand based on "clearly
improper ground" when non-indispensable parties joined). While it seems
to the court that Merrimack exaggerates the holding in Thermtron Products
Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542
(1976), on which it relies, the court nevertheless believes that the rule
stated in Merrimack is the correct one. In determining whether removal
was improvident and without jurisdiction, the court has considered only
the facts of the case as they existed at the time of the removal and has
ignored the subsequent addition of a nonindispensable non-diverse party.
At least one court has permitted the plaintiff to amend a complaint to
add nondiverse defendants in reliance on Fed.R. Civ.P. 15(c), relating
the amendment back to the date of the original complaint. Soam Corp. v.
Trane Co., 506 F. Supp. 302, 308 (S.D.N.Y. 1980). The court then held the
case improvidently removed because diversity jurisdiction was lost.
Soam, 506 F. Supp. 802, at 308. In Ryan v. State Bd. of Elections of
State of Ill., 661 F.2d 1130, 1134 (7th Cir. 1981) the Court focused on
this aspect of Soam. Whether or not it is proper to apply Fed.R.Civ.P. 15
(c) in this way, there is no suggestion that the facts of this case meet
the requirements which that Rule sets for the relation back of amendments
that add parties.
The court may on motion of any party or by its own initiative drop a
party on such terms as are just. Fed.R.Civ.P. 21. In order to preserve
diversity, the court drops IHB.
Accordingly, the court denies plaintiff's motion to remand this case.
The Indiana Harbor Belt Railroad Company is dropped as a party.
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