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MURPHY v. TOWMOTOR CORP.

July 30, 1985

DAVID MURPHY, PLAINTIFF,
v.
TOWMOTOR CORPORATION, DEFENDANT.



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 flawed:

    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.

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 ...


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