County via a removal petition by Towmotor Corporation
("Towmotor"), which reflected the only parties to the litigation
as defendant Towmotor and plaintiff David Murphy ("Murphy").
After the litigation had reached the final pretrial order
("FPTO") stage, this Court learned for the first time of the
presence of Interlake, Inc. ("Interlake"), Murphy's employer, as
intervenor under an April 24, 1984 (preremoval) order issued by
Honorable Paul Elward of the Circuit Court.
Because the FPTO disclosed Towmotor's removal petition had been
defective for nonjoinder of, or a lack of notice to, Interlake,
this Court promptly issued a July 30, 1985 remand order (in the
"Opinion", 642 F. Supp. 22). Towmotor then filed a motion seeking
(1) vacation of the July 30 order and (2) leave to amend its
original removal petition to reflect Interlake's presence. For
some inexplicable reason that motion has remained dormant ever
since, until this Court again became aware of its existence only
recently (and by chance Towmotor's lawyer also sent a letter
calling the matter to this Court's attention).*fn1
Opinion at 23-24 said Judge Elward's treatment of Interlake as
"not . . . a party litigant," though he had given it leave "to
join in the action," was really unwarranted by Illinois law
(Ill.Rev.Stat. ch. 110, ¶ 2-408, which is drawn directly from
Fed.R.Civ.P. ["Rule"] 24). Though Towmotor then supplemented the
memorandum supporting its motion with a letter referring to three
Illinois decisions,*fn2 none of those supported the idea the
employer-intervenor was not a party (a concept that the Opinion
accurately suggested was really a contradiction in terms).
Instead Sjoberg, 8 Ill.App.2d at 417-18, 132 N.E.2d at 58 (the
only Illinois case dealing directly with intervention) recognized
the intervening employer as a party, while holding the employer
would not have the right to participate in the conduct or trial
of the action without the employee's consent.
Neither of the other cited Illinois cases is inconsistent with
that view of the employer as party to the litigation. Indeed,
what McCormick points up is that the employer as intervenor has
interests adverse to both the third-party tortfeasor (because
recovery by the employee is necessary to create a fund available
for the employer's reimbursement) and the employee (because the
employer's reimbursement pro tanto reduces the employee's
in-pocket recovery from the third-party tortfeasor).*fn3 Thus
Murphy and Interlake have common cause against Towmotor, but they
interests in the fund that may be generated by their common
Indeed, further reflection in light of the case law Towmotor
has adduced does require modification of some of the things said
in the Opinion — but in the direction of fortifying rather than
changing the result reached: remand of this case. Opinion at 2
said viewing Interlake as a party defendant "would seem an inapt
label under the circumstances." But there is no question
Interlake will have a right of subrogation against Murphy if this
action succeeds against Towmotor — a right that would be
enforceable by separate action, with Interlake and Murphy on
opposite sides of the dispute. And Interlake's intervention in
this action is simply a device for asserting that claim here
rather than by a separate lawsuit. In sum, the McCormick
demonstration that the employer-intervenor is adverse to both the
employee and the third-party tortfeasor is a real-world
characterization this Court ought to heed in considering how its
diversity jurisdiction is to be determined.
Two principles thus emerge from Towmotor's own citations:
1. Opinion at 3-4 was correct in characterizing as
incorrect Judge Elward's order denying Interlake
party status. Under Ill.Rev.Stat. ch. 110, ¶ 2-408(f)
Interlake did become a party when it was given
leave to intervene, albeit a party with limited
rights of participation.
2. Interlake could not be viewed as a "nominal"
party, to be disregarded for removal purposes. It has
a direct economic interest in the outcome that its
intervention is intended to protect — that is the
specific (and stated) reason for the Ill.Rev.Stat.
ch. 48, ¶ 138.5(b) grant of the right to intervene.
Indeed Harris, 37 F.R.D. at 345 held such an
employer's intervention was of right under Rule
24(a), supporting its non-nominal status in federal
jurisdictional terms. And that was the square holding
of Helms v. Ehe, 279 F. Supp. 132, 134 (S.D.Tex.
1968) (cited by Murphy's counsel in response to the
letter from Towmotor's counsel).
This opinion proceeds from those principles, viewing Interlake as
a party whose presence must be taken into account for removal
Towmotor identifies Interlake as an Illinois citizen under
28 U.S.C. § 1332(c): Its principal place of business is in Illinois.
Murphy too is an Illinois citizen. Hence if (as already
suggested) Interlake's presence in the litigation is viewed as
adverse to Murphy's, that would totally destroy diversity and
render the removal as having been taken "improvidently and
without jurisdiction" (28 U.S.C. § 1447(c)). That was in fact the
result in Helms once the intervening employer was held a
Even if that were not the case, however, Towmotor did not
comply with the statutory requirements for the reasons stated in
the Opinion.*fn5 And it will not do for Towmotor's counsel to
describe the Opinion as "technical" — let alone "hypertechnical"
(Towmotor Mem. 6) in having referred to that noncompliance. All
of federal jurisdiction is "technical" in that sense: Federal
courts are courts of limited jurisdiction, and the crossing of
t's and dotting of i's is the essence of procedural and
What exists here, then, is a substantial predicate for
considering federal jurisdiction utterly nonexistent. Such cases
as Kanzelberger v. Kanzelberger, 782 F.2d 774 (7th Cir. 1986)
and Ross v. Inter-Ocean Insurance Co., 693 F.2d 659 (7th Cir.
1982) teach it is foolhardy to risk permitting the parties to
proceed where — even post-judgment — the loser will have a free
run at attacking the result in forcing the action to begin anew
in the state court. Even on the alternative predicate that would
ignore (unrealistically) the adverse positions of Murphy and
Interlake, jurisdiction was certainly (though in the "technical"
sense criticized by Towmotor) absent at the time of removal — and
that is so even though this Court would likely have discretion to
permit the flaw to be cured and retain the case.
In that posture, with one hypothesis creating a federal subject
matter jurisdictional flaw and the other hypothesis a "technical"
lack of subject matter jurisdiction subject to possible cure,
responsible jurisprudence calls for avoiding the substantial risk
that such jurisdiction is lacking. Assuredly under the first
hypothesis, and as a reasonable application of the removal rules
to the second hypothesis, this case "was removed improvidently
and without jurisdiction" (28 U.S.C. § 1447(c)). Towmotor's
motion to vacate the July 30, 1985 order is denied, and the
Opinion remanding this action to the Circuit Court of Cook County