The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Dr. Haim Elrad ("Elrad") sued United Life and Accident
Insurance Co. ("United"), alleging misrepresentation in
connection with United's sale to him of a life insurance policy.
The case was originally filed in Illinois state court, but United
removed to this Court under 28 U.S.C. § 1441(b), basing
jurisdiction on diversity of citizenship. Once here, United
promptly moved to dismiss the case, while Elrad moved to remand
the case to state court. For the following reasons, United's
motion is granted and Elrad's is denied.
The allegations of the complaint, viewed in the light most
favorable to Elrad and assumed to be true, state the following.
On October 12, 1981,*fn1 Robert Smith, acting as United's agent,
sold a life insurance policy to Elrad. Smith allegedly induced
Elrad to buy the policy by falsely representing that the policy
was a "whole-life" rather than "term" policy, and that he could
deduct from his federal income tax interest he would incur to
finance a loan to pay for the policy. Relying on those
misrepresentations, Elrad borrowed money from Professional
Funding Corp. to pay for the premiums.
Elrad claims that the interest is not lawfully tax deductible,
and that the policy is a term rather than whole-life one. He
seeks recovery under three state law theories. Count I alleges a
violation of Ill.Rev.Stat. ch. 73, § 761, a provision of the
Illinois Insurance Code prohibiting misrepresentations as to the
terms or benefits of a policy.*fn2 Count II rests on §§ 1-203 and
2-302 of the Uniform Commercial Code ("UCC"), Ill.Rev.Stat. ch.
26, §§ 1-203, 2-302 (1983), which respectively prescribe good
faith in performing contracts subject to the UCC and proscribe
unconscionable clauses in contracts governed by the UCC. Count
III alleges violations of the Illinois Consumer Fraud and
Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶
262 (1983), and the Uniform Deceptive Trade Practices Act,
Ill.Rev.Stat. ch. 121 1/2, ¶ 312 (1983). None of these theories
can defeat United's motion to dismiss.
As a threshold matter, we must rule on Elrad's opposition to
United's petition to remove this case from state court. Elrad
does not dispute that diversity jurisdiction is proper from the
face of his complaint: he is a citizen of Illinois while United
is incorporated in and has its principal place of business in New
Hampshire. Moreover, the amount in controversy exceeds $10,000,
and United has complied with the non-jurisdictional requirements
for removal set forth in 28 U.S.C. § 1446.
Elrad's argument is that the case was not "providently" removed
under 28 U.S.C. § 1447(c). He points out there were related state
court cases involving the same subject matter, and that judicial
economy compels that the cases be tried together. In one state
case, Professional Funding Corp. sued Elrad for not paying on the
insurance funding agreement. Elrad counterclaimed and also
brought in United and its alleged agent Smith as third-party
defendants. But the state court dismissed the third-party claim
against United, suggesting that Elrad refile the complaint and
move to consolidate it with the first suit. Elrad refiled, but
United removed the case here before Elrad could file his motion
At the outset, we observe that the term "provident" in §
1447(c) is not a broad invitation to this Court to decline
jurisdiction simply for reasons of economy. It simply refers to
basic non-jurisdictional requirements such as the posting of a
bond. It is now well established that a district court cannot
remand an otherwise properly removed case for discretionary or
policy reasons. See Thermitron Products, Inc. v. Hermansdorfer,
423 U.S. 336, 343-44, 96 S.Ct. 584, 589-90, 46 L.Ed.2d 542
(1976); Ryan v. State Bd. of Elections of State of
Ill., 661 F.2d 1130, 1133 (7th Cir. 1981). Since this case
satisfies the jurisdictional and non-jurisdictional requirements
of §§ 1441 and 1446, respectively, there is no basis for
remanding this case.*fn3 Thus, the motion to remand is denied.
Having so ruled, we may now turn our attention to United's attack
on the complaint.
Count I: No Private Right of Action
United is correct that no private right of action exists for a
violation of Ill.Rev.Stat. ch. 73, § 761. Section 761(5) provides
that any company who violates that section "shall be guilty of a
business offense and shall be required to pay a penalty of
[between $100 and $1,000], to be recovered in the name of the
People of the State of Illinois by the State's Attorney of the
county in which the violation occurs. . . ." At least one
Illinois court has held that in enacting this section the
Illinois legislature pre-empted the remedies for violations of §
761, foreclosing a private right of action. See Glazewski v.
Allstate Ins. Co., 126 Ill.App.3d 401, 410-11, 81 Ill.Dec. 349,
466 N.E.2d 1151, 1157-58 (1st Dist. 1984), aff'd in part, rev'd
in part on other grounds, 108 Ill.2d 243, 91 Ill.Dec. 628,
483 N.E.2d 1263 (1985). Elrad has not attempted to distinguish
Glazewski or otherwise address this challenge to Count I.
Accordingly, we follow Glazewski and grant United's motion to
dismiss Count I.*fn4
Count II: UCC Does Not Apply
We must also reject Elrad's claim that United's alleged
misrepresentations are subject to the UCC. He has cited no
authority to support his novel assertion. He claims that United's
conduct was unconscionable under Section 2-302 of the Code, but
Article II applies only to the sale of goods. See Ill.Rev.Stat.
ch. 26, ¶ 2-102 (1983). We disagree with Elrad's strained
argument that a sale of life insurance is somehow the sale of a
"good." See ¶ 2-105 (defining "good"). He also claims that
United's conduct violated the "obligation of good faith" imposed
by ¶ 1-203 of the UCC. But of course ¶ 1-203 applies only to a
"contract or duty within" the UCC, and Elrad has not shown how
his insurance contract is within the Code. While an insurance
contract is a "commercial transaction," not all commercial
transactions fall within the Code. Indeed,
[t]he . . . Code does not apply to the sale of realty
(except fixtures), yet these are undeniably
commercial matters. The Code does not apply to the
formation, performance, ...