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USHMAN BY USHMAN v. STERLING DRUG

March 22, 1988

HEATHER MARIE USHMAN, BY CINDY USHMAN, HER MOTHER AND NEXT FRIEND, PLAINTIFF,
v.
STERLING DRUG, INC., AND MEMORIAL MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

A question of removal.

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.

I. FACTS

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 Civil 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 non-resident defendant.

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.

II. HISTORY

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 removal.

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 ...


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