The opinion of the court was delivered by: Richard Mills, District Judge:
Specifically, the "voluntary-involuntary" rule.
It is a viable doctrine which is here applicable.
The case is remanded to state court.
This cause is before the Court on the recommendation of
United States Magistrate Charles H. Evans. Pursuant to
28 U.S.C. § 636(b)(1), the Court has made a de novo review of the
objections to the Magistrate's recommendation filed herein.
The able recommendation will be adopted.
On November 25, 1986, Plaintiff filed a complaint against
Defendants in state court seeking damages for injuries she
incurred during her birth. Plaintiff alleged that Defendant
Sterling manufactured a defective, unreasonably dangerous
drug, and that Defendant Memorial Medical Center ("Memorial"),
by and through its agents, negligently administered the drug.
Plaintiff did not file the physician's report or affidavit of
merit required by Ill.Rev.Stat. ch. 110, ¶ 2-622. On June 30,
1987, the state court granted Defendant Memorial's motion to
dismiss pursuant to § 2-619 and § 2-622 of the Illinois Code of
Procedure. On or about July 8, 1987, Plaintiff filed a notice
of appeal from the trial court's order of dismissal. On July
30, 1987, Defendant Sterling filed a petition to remove the
cause to this Court on the grounds of diversity jurisdiction.
Defendant Sterling claimed that diversity became complete with
the dismissal of Defendant Memorial, an Illinois resident,
from the lawsuit. Plaintiff is a resident of Illinois, and
Defendant Sterling a resident of New York. The Plaintiff filed
a motion to remand this case to the state court. While
Plaintiff's motion was pending, the state appellate court
affirmed the lower court's decision. Plaintiff has filed a
petition for rehearing.
The issue: Whether a case can be removed from the state
court by a non-resident defendant, on diversity grounds, where
multiple defendants are involved — one resident and one
non-resident — and the resident defendant has been dismissed
by the state trial court and the plaintiff appeals that ruling,
where no action is taken by the state trial court against the
The issue is resolved by application of the
"voluntary-involuntary" rule developed by the Supreme Court to
govern the propriety of removal in cases such as that
presented here. Though the question involved here has been
addressed in other circuits, there is no Seventh Circuit
authority to guide our decision.
A history of the development of the voluntary-involuntary
rule is provided in Self v. General Motors Corp., 588 F.2d 655
(9th Cir. 1978). The Supreme Court has developed the
"voluntary-involuntary" rule which requires that a suit remain
in state court unless a "voluntary" act of the plaintiff brings
about a change that renders the case removable. The rule
originated in the nineteenth century case of Powers v.
Chesapeake & Ohio Ry., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673
(1898). In Powers, when the action originally was filed in
state court, complete diversity was lacking between the
parties. After the time for removal had elapsed, however, the
plaintiff dismissed the non-diverse defendant, leaving only
diverse parties remaining in the action. In allowing removal,
the Supreme Court held that the time for removal begins to run
only after complete diversity occurs and that the plaintiff's
delay in dismissing one of the defendants did not defeat
The next case in the development of this rule was
Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303
(1900). There, a directed verdict had been ordered in favor of
the non-diverse defendants, arguably making the case
appropriate for removal. The Supreme Court found that the lower
court's directed verdict required a ...