The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
At the July 17, 1985 pretrial conference in this case, this
Court noted the failure of intervenor Interlake, Inc.
("Interlake")*fn1 to join in the final pretrial order (the
"Order") jointly prepared and tendered by counsel for plaintiff
David Murphy ("Murphy") and defendant Towmotor Corporation
("Towmotor").*fn2 Counsel for Murphy and Towmotor then advised
this Court that Interlake and its counsel had not participated at
all in preparation of the Order and had participated minimally in
the discovery process leading to preparation of the Order.
This Court's initial concern, upon being advised of Interlake's
involvement in the case, was as to the validity of Towmotor's
removal petition. Federal courts are courts of limited
jurisdiction prescribed by Congress, and a removal petition that
wholly omits reference to one of the litigants is necessarily
1. If Interlake were somehow viewed as a party
defendant (which would seem an inapt label under the
circumstances), its non-joinder in the petition and
Towmotor's silence as to the reason for non-joinder
would be fatal to the removal. Hardesty v. General
Foods Corp., 608 F. Supp. 992 (N.D.Ill. 1985).
2. If Interlake were considered as a party
plaintiff,*fn3 Towmotor's failure to serve notice on
it*fn4 would render the removal petition defective,
for 28 U.S.C. § 1446(e) (emphasis added)*fn5
requires that the defendant "give written notice
thereof to all adverse parties."
Accordingly this Court had its law clerk obtain the entire
record in this District Court to determine Interlake's posture in
the case. What the record reflects is an April 24, 1984 order by
Honorable Paul Elward of the Circuit Court of Cook County
(entered fully six months before the removal) giving leave to
Interlake "to join in the action" but stating:
4. That said action be carried on without a change
in title, intervening petitioner shall not be
considered a party litigant to the case nor
participate in the conduct or trial of the suit.
That order, though it tracks Interlake's petition, is
mysterious. Ill.Rev.Stat. ch. 110, ¶ 2-408 ("Section 2-408")
deals with intervention in a manner drawn directly
from Fed.R.Civ.P. ("Rule") 24. Judge Elward's simultaneous
party-nonparty status for Interlake would be unknown in the
federal practice, for Rule 24 treats an intervenor "as if he were
an original party and has equal standing with the original
parties" (7A Wright & Miller, Federal Practice and Procedure:
Civil § 1920, at 611 (1972)), subject only to possible
conditions "of a housekeeping nature" (id. § 1922, at 626). In
like manner, under Illinois' Section 2-408(f) "[a]n intervenor
shall have all the rights of an original party," with certain
stated exceptions that the court is authorized to impose to avoid
the intervenor's disruption of prior or future proceedings. This
Court's quick (though admittedly incomplete) survey of state law
has uncovered nothing in the Illinois practice to support the
party-nonparty concept there. Indeed Act § 138.5(b) specifically
refers to the employer joining in the employee's action against
the third party, without any hint of the employer's then having
anything less than full party status in the litigation.
It is unnecessary however to explore that subject in depth.
Whether or not Judge Elward's order was solidly grounded in
Illinois law, Towmotor could reasonably have relied on it by
omitting Interlake from its listing of the parties in the removal
petition, so as perhaps to bring Section 1653 into play and
permit a belated curing of that justifiable omission. Towmotor's
problem is that it did not indulge such a limited and
understandable lapse in the removal procedure. Instead it ignored
entirely Paragraph 2 of Judge Elward's order, which expressly
stated (emphasis added):
2. That all orders entered herein shall be made for
the protection of the interests and rights of
INTERLAKE, INC., and that all notices shall be
served upon its attorneys, Seyfarth, Shaw,
Fairweather & Geraldson, 55 East Monroe Street, Suite
4200, Chicago, Illinois, 60603, in the same manner as
if INTERLAKE, INC. was a party to the original suit.
Towmotor did not serve Interlake with notice of the removal,
as both Judge Elward's order and Section 1446(e) required. And
because the removal petition did not even disclose the existence
of Interlake, it obviously did not identify Interlake's
citizenship, also a necessary factor in conferring this Court's
limited jurisdiction. Just as the facts of total diversity of
citizenship must be both present and affirmatively alleged in
order to vest jurisdiction in a federal court in the first
instance (see, e.g., 5 Wright & Miller, Federal Practice and
Procedure: Civil ¶ 1208, at 87 & n. 99 and cases there cited
(1969 ed. and 1985 pocket part); 13 B id. § 3624, at 610 & n.
20 and cases there cited (1984 ed. and 1985 pocket part)), so the
removal petition must affirmatively allege those same facts.
Hardesty, 608 F. Supp. at 993.
Accordingly this action was "removed improvidently and without
jurisdiction" within the meaning of Section 1447(c). Interlake
had and has a substantial economic interest in this litigation,
and it cannot be viewed as a purely nominal party as was the case
in Northern Illinois Gas Co. v. Airco Industrial Gases,
676 F.2d 270, 272-74 (7th Cir. 1982). Because we are long past the
date for timely removal, and because this case involves the total
absence of a necessary allegation of jurisdiction (as contrasted
with a merely defective one), it is not one calling for
invocation of Section 1653. Hardesty, 608 F. Supp. at 993 & n.
2; Mason v. IBM, 543 F. Supp. 444, 446 (M.D.N.C. 1982).
This Court therefore remands this action to the Circuit Court
of Cook County. All proceedings in this District Court, including
Murphy's and Towmotor's joinder in the Order (though had the case
remained here, this Court would have required Interlake to join
in the Order as well), will remain in the case. Towmotor is
required to pay any ...