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VIDMAR BUICK CO. v. GENERAL MOTORS CORP.

September 26, 1985

VIDMAR BUICK COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF,
v.
GENERAL MOTORS CORPORATION, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Nordberg, District Judge.

MEMORANDUM OPINION AND ORDER

This matter is before the court upon the Motion of plaintiff Vidmar Buick Company ("Vidmar") for Remand or, in the alternative, for Reconsideration of the State Court Order Transferring Venue. For the reasons set forth below, Vidmar's motion is denied.

I. Removability of Vidmar's Claim in the Initial Complaint

Vidmar contends that its claim in the initial complaint filed in state court on April 16, 1985 was removable, and that defendant General Motors Corporation ("GM") failed to remove this claim from state court within thirty days of receipt of the initial complaint, as required under 28 U.S.C. § 1446(b). Vidmar presents two arguments in support of its contention that its claim in the initial complaint was removable: (1) Vidmar's claim was separate and independent from the claims of co-plaintiffs Stillwell Buick and Gartner Buick, and the entire case was therefore removable under 28 U.S.C. § 1441(c); and (2) under Mielke v. Allstate Insurance Co., 472 F. Supp. 851 (E.D.Mich. 1979), GM should not have waited for a state court order transferring venue because it was obvious, from the face of the complaint, that Vidmar improperly sued GM in DuPage County with co-plaintiffs Stillwell and Gartner.

As for Vidmar's first argument, the court finds that the claim or cause of action of Vidmar in the initial complaint is not separate and independent from those of co-plaintiffs Stillwell and Gartner. In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), the Supreme Court interpreted the "separate and independent" requirement of § 1441(c). The Court concluded that:

  [W]here there is a single wrong to plaintiff, for
  which relief is sought, arising from an interlocked
  series of transactions, there is no separate and
  independent claim or cause of action under §
  1441(c).

Finn, 341 U.S. at 14, 71 S.Ct. at 540. While Finn involved one plaintiff and multiple defendants, the "single wrong" test adopted by the Court also applies in a case, such as the instant case, involving multiple plaintiffs and one defendant. See Layden v. Zantop Air Transport, Inc., 265 F. Supp. 743, 748 (N.D.Ill. 1967).

In this case, the three plaintiff automobile dealers allege that GM violated the Motor Vehicle Franchise Act, Ill.Rev.Stat. ch. 121 1/2, § 751 et seq., when GM established another Buick dealership in the plaintiffs' market area. The plaintiffs allege that one happening — the establishment of an additional Buick franchise in the Bolingbrook, Illinois area — adversely affected all three plaintiffs. Following Finn, the court finds that Vidmar's claim or cause of action in the initial complaint is not separate from those of co-plaintiffs Stillwell and Gartner.

  II. Removability of Vidmar's Case After the State Court Order
                       Transferring Venue

The three plaintiff dealerships filed their initial complaint against GM in DuPage County, Illinois. On May 23, 1985, GM filed a Motion to Dismiss Vidmar, asserting that Section 762 of the Motor Vehicle Franchise Act, which provides that ". . . a proceeding . . . shall be commenced by the objecting franchisee in the Circuit Court of the County in which the objecting franchisee has its principal place of business," mandated that Vidmar commence its suit in Will County, Illinois.*fn2 On June 18, 1985, the state court denied GM's Motion to Dismiss, but entered an order, sua sponte, transferring Vidmar's complaint to the Circuit Court of Will County pursuant to Section 762. GM removed Vidmar's complaint to this court on July 1, 1985, less than thirty days after the state court order transferring venue, as required under 28 U.S.C. § 1446(b).

Vidmar asserts that GM may not remove Vidmar's claim under Section 1446(b) because the state court order did not amount to an "amended pleading, motion, order or other paper" which would commence the thirty-day period of time for filing a removal petition. According to Vidmar, the "amended pleading, motion, order or other paper" referred to in Section 1446(b) must be one that has been filed by the plaintiff. Vidmar cites a long line of cases, starting with Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898), which hold that, apart from fraudulent joinder, when a plaintiff states a non-removable case in his initial complaint, only a voluntary act of the plaintiff will make the case removable.

It is obvious that the plain language of Section 1446(b) does not mandate the voluntary/involuntary distinction.*fn3 In fact, there has been some debate as to whether Congress intended to abolish the distinction when it amended Section 1446(b) in 1949, adding what is now the second paragraph in sub-section (b).*fn4

The majority of cases, some of which were decided after the 1949 amendment, follow the voluntary/involuntary distinction; however, most of these cases involve a directed verdict against a nondiverse defendant without a voluntary act on the part of the plaintiff. See, e.g., Self v. General Motors Corp., 588 F.2d 655 (9th Cir. 1978); Weems v. Louis Deryfus Corp., 380 F.2d 545 (5th Cir. 1967). See also cases cited in 14A Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters, ยง 3723, n. 18 (1985). The underlying purpose of the voluntary/involuntary rule in these cases is "to protect plaintiff's choice of ...


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