United States District Court, Central District of Illinois, Springfield Division
March 22, 1988
HEATHER MARIE USHMAN, BY CINDY USHMAN, HER MOTHER AND NEXT FRIEND, PLAINTIFF,
STERLING DRUG, INC., AND MEMORIAL MEDICAL CENTER, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
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.
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 result different from that
resulting from the plaintiff's voluntary dismissal in Powers:
This [the directed verdict] was a ruling on the
merits, and not a ruling on the question of
jurisdiction. It was adverse to plaintiff, and
without his assent, and the trial court rightly
held that it did not operate to make the cause
then removable and thereby to enable the other
defendants to prevent plaintiff from taking a
verdict against them.
Id. at 638, 20 S.Ct. at 250.
That only a voluntary act of the plaintiff could bring about
removal to federal court became the established rule in later
cases. Self, 588 F.2d at 657-58.
III. POLICY CONSIDERATIONS
Various policy considerations are asserted as being the
basis for the voluntary-involuntary rule. Most prominent among
these considerations is to protect the plaintiff's choice of
forum for as long as he wishes it to be protected (in other
words, until he makes a voluntary move to make removal
possible). The Supreme Court has stated: "[I]n the absence of
a fraudulent purpose to defeat removal, the plaintiff may by
the allegations of his complaint determine the status with
respect to removability of a case . . . and . . . this power
to determine the removability of his case continues with the
plaintiff throughout the litigation. . . ." Great Northern Ry.
246 U.S. 276, 281-82, 38 S.Ct. 237, 239-40, 62 L.Ed. 713
An additional purpose of the rule has been put forth: to
prevent removal where state court proceedings are not yet
final, thus raising the possible necessity of remanding the
case to the state court. Vidmar Buick Co. v. General Motors
Corp., 624 F. Supp. 704, 707 n. 5 (N.D.Ill. 1985). But see
Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement
Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909) (a pre-1949
case holding that even though state appellate process was
complete, removal was still prohibited); Jenkins v. National
Union Fire Ins. Co. of Pa., 650 F. Supp. 609, 613-14 (N.D.Ga.
1986) (citing several Supreme Court decisions where removal was
held improper even though state court proceedings were final as
to the non-diverse party).
IV. THE 1949 AMENDMENT
In 1949, the removal provision at 28 U.S.C. § 1446(b) was
amended to provide, for the first time, for removal of cases
which were not removable on the initial pleading.*fn1 Although
this amendment was meant only to codify existing case law, see
2 U.S.Code Cong.Serv. 1248, 1268, 81st Cong., 1st Sess. (1949)
("This [amendment] is declaratory of the existing rule laid
down by the decisions")*fn2, Defendant argues that the
amendment abolished the voluntary-involuntary rule.
The seminal case since the 1949 amendment to the removal
statute is Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir.
1967). After examining the origins of the voluntary-involuntary
rule and the history of the 1949 amendments to § 1446(b), the
Weems court concluded that
the intended effect of the amendment apparently
is to affirm the general principle decided in
Powers, namely, that a case nonremovable when
commenced can later become removable. . . .
However, the issue of what kind of order makes the
case removable, traditionally resolved by the
voluntary-involuntary rule, does not seem to have
been dealt with. . . . Hence, it would seem that
the voluntary-involuntary rule was not affected by
the amendment, and therefore remains part of
today's applicable case law.
Weems, 380 F.2d at 548.
In Self v. General Motors Corp., 588 F.2d 655 (9th Cir.
1978), the Court of Appeals for the Ninth Circuit used both
pre-and post-1949 cases to determine that, not only is the
voluntary-involuntary rule still viable, but the Court further
[Defendant] has made a determined effort to
explain why the facts of the present appeal argue
for a relaxation of the formal rule. [Defendant]
has pointed out that a final judgment has been
rendered against the non-diverse party so that on
retrial the only parties in interest will be
diverse citizens. Consequently, on the face of
the plaintiff's pleadings, the same diversity
exists in this case that would exist if the
plaintiff had voluntarily dismissed the
If this court were free to fashion its own
application of the voluntary-involuntary rule, we
might well be persuaded that on the facts of this
case, the rule should be modified to allow
removal. Lacking that freedom, however, we are
obliged to follow the formalistic approach
adopted by the Supreme Court.
Self, 588 F.2d at 660 n. 6. Thus, in this 1978 case, the Ninth
Circuit believed it was still fully bound by pre-1949 Supreme
Court precedent (the court was, most specifically, alluding to
American Car & Foundry Co. v. Kettelhake, 236 U.S. 311
S.Ct. 355, 59 L.Ed. 594 (1915)) with respect to the
voluntary-involuntary rule, the 1949 amendment notwithstanding.
In Self, Judge Ely dissented from this position, however,
arguing that "I cannot, absent plain and unequivocal direction
from the Supreme Court, accede to the proposition that the
Court has fashioned and perpetuated a formalistic and
artificial rule of procedure devoid of any supporting
rationale." Self, 588 F.2d at 660 (Ely, J., dissenting). Judge
Ely argued that the voluntary-involuntary rule rests upon
notions of comity and judicial efficiency with the principal
consideration being finality. Thus, the thrust of Judge Ely's
argument is that the only time the rule should be applied to
prevent removal is where the non-diverse citizen's presence in
the suit has not yet finally been determined by the state
courts. The Second Circuit has advocated a similar view in
Quinn v. Aetna Life & Casualty Co., 616 F.2d 38, 40 n. 2 (2d
Cir. 1980). There, the Court held that plaintiff's failure to
appeal the non-diverse defendant's involuntary dismissal
constituted the "functional equivalent" of a voluntary
In addition to the Fifth and Ninth Circuits, the
voluntary-involuntary rule has been followed in post-1949
amendment cases in the Eighth Circuit, In re Iowa Mfg. Co.,
747 F.2d 462 (8th Cir. 1984), and the Tenth Circuit, DeBry v.
Transamerica Corp., 601 F.2d 480 (10th Cir. 1979). Further, the
rule has been adopted by district courts in the following
circuits: First (New England Explosives Corp. v. Maine Ledge
Blasting Specialist, Inc., 542 F. Supp. 1343, 1347 (D.Me.
1982)); Third (Cook v. Pep Boys — Mannie, Moe & Jack, Inc.,
641 F. Supp. 43, 45-46 (E.D.Pa. 1985)); Fourth (Warren Brothers
Co. v. Community Building Corp. of Atlanta, Inc., 386 F. Supp. 656,
659-60 (M.D.N.C. 1974)); Sixth (Hopkins Erecting Co. v.
Briarwood Apartments of Lexington, 517 F. Supp. 243, 249-50
(E.D.Ky. 1981)); and Eleventh Jenkins v. National Union Fire
Ins. Co. of Pa., 650 F. Supp. 609 (N.D.Ga. 1986).
Finally, this Court's research has not uncovered any Seventh
Circuit cases which have spoken on the rule. Similarly, no
Illinois district court cases have been found which have
directly ruled on the issue. However, while finding that the
case before him fell into the exception to the
voluntary-involuntary rule — that being where a party is
joined fraudulently to defeat removal — Judge Nordberg of the
Northern District of Illinois stated:
It is obvious that the plain language of Section
1446(b) does not mandate the
voluntary/involuntary distinction. In fact, there
has been some debate as to whether Congress
intended to abolish the distinction when it
amended Section 1446(b) in 1949. . . .
Vidmar Buick Co. v. General Motors Corp., 624 F. Supp. at 706.
However, he conceded that the majority of cases have found the
distinction to remain viable.
In Ford Motor Credit Co. v. Aaron-Lincoln Mercury, Inc.,
563 F. Supp. 1108, 1116-17 (N.D.Ill. 1983), Judge Marshall, in
allowing removal under § 1441(c) based on a third party action,
held that such removal was not prohibited under § 1446(b)'s
voluntary-involuntary rule even though there was no voluntary
action on plaintiff's part. He rested his decision on "separate
and independent claim" grounds, adding "the underlying purposes
of section 1446(b) are not offended by removal in this case."
Aaron-Lincoln, 563 F. Supp. at 1117.
There is very little contrary authority to the above cited
cases. In addition to Quinn, the only contrary authority found
by the Court is: Lyon v. Illinois Central R.R., 228 F. Supp. 810,
811 (S.D.Miss. 1964); Parkhill Produce Co. v. Pecos Valley
S. Ry., 196 F. Supp. 404, 406-07 (S.D.Tex. 1961); and Bradley v.
Halliburton Oil Well Cementing Co., 100 F. Supp. 913, 916-17
(E.D.Okla. 1951). However, the first two cited cases are Fifth
Circuit cases which are effectively overruled by Weems.
Likewise, the third case is effectively overruled by the Tenth
Circuit's decision in DeBry.
V. DEFENDANT'S OBJECTIONS
Defendant asserts three arguments in opposition to the
Magistrate's recommendation. First, Defendant states in its
"Objections to Magistrate's Recommendation" that: "The wording
of the present removal statute, 28 U.S.C. § 1446(b) does not
incorporate the voluntary/involuntary rule. The effect of this
amendment under the rules of statutory construction, is
Congressional abolition of the voluntary/involuntary rule." The
Court regrets that Defendant chose not to share these rather
novel "rules of statutory construction" with the Court, as the
above-quoted assertion was made without supporting authority.
Peculiarly, the only authority the Court could find was quite
to the contrary of Defendant's proposed rule. In Atkins v.
United States, 556 F.2d 1028, 214 Ct.Cl. 186 (1977), cert.
denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978), the
court stated the rule:
A cardinal principle of statutory interpretation
is that, in the absence of a clearly expressed
intent to the contrary, the revision or
recodification of a statute indicates approval of
court interpretations of the statute made prior
to reenactment. Also, it is not presumed that the
common law is changed by the passage of a statute
which gives no indication that it proposes such a
Id. 556 F.2d at 1039-40; see also Devine v. White,
697 F.2d 421, 431 n. 42 (D.C. Cir. 1983) ("In the absence of a
congressional indication to the contrary, we generally presume
that legislation was not intended to change the common law.");
Bush v. Oceans International, 621 F.2d 207, 211 n. 4 (5th Cir.
1980) (change in the status quo should not be inferred unless
Congress has unmistakably indicated an intent to the contrary);
cf. Kelly v. Wauconda Park District, 801 F.2d 269, 272 (7th
Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1592, 94
L.Ed.2d 781 (1987).
Next, Defendant argues that our decision here conflicts with
an earlier decision of this Court. Ellis v. Breon Laboratories,
Inc., No. 87-3009 (C.D.Ill. Aug. 14, 1987) (unpublished order
adopting Magistrate's recommendation denying plaintiff's motion
to remand). In Ellis, this Court found there to be fraud in the
initial pleading in state court wherein plaintiff joined
nondiverse parties solely to defeat removal. This, of course,
presents an exception to the voluntary-involuntary rule and
allows removal without a voluntary act on plaintiff's part. See
Vidmar Buick, 624 F. Supp. at 707. However, in the instant case,
we concur in the Magistrate's finding that there was no fraud
involved in the initial pleading even though the nondiverse
defendant was dismissed by the state trial court. This
dismissal arose over a technical violation by Plaintiff of the
Illinois Medical Malpractice Statute and not from a failure to
state a cause of action against the dismissed defendant, as is
required to invoke the exception. See Lewis v. Time, Inc., 83
F.R.D. 455, 460 (E.D.Cal. 1979), aff'd, 710 F.2d 549 (9th Cir.
Finally, Defendant asserts that because of the "difficult
issue" involved here, this Court should deny Plaintiff's motion
so that the Seventh Circuit could review the issue, which it
will be unable to do if the motion is allowed. Defendant states
that this "would seem the logical thing to do." First of all,
this Court is not in the business of making work for the
appellate court. Second, this Court is bound to decide this
cause according to the law as this Court views it. We are not
free to "set up" precedent setting cases for the appellate
court. Lastly, the voluntary-involuntary rule "has been
established by Supreme Court caselaw; it may not be abolished
by inferior courts." Strasser v. KLM Royal Dutch Airlines,
631 F. Supp. 1254, 1258 (C.D.Cal. 1986).
This is precisely what Defendant urges us to do.
We will not.
Clearly, the Self decision presents the majority view.
However, under either the majority view (as expressed in Self)
or the minority view (as expressed in Judge Ely's dissent and
Quinn), removal in the instant case would not be proper because
the non-diverse party's existence in the suit has not yet
finally been determined by the appellate court of Illinois.
There is little question among the cases that the
voluntary-involuntary rule has survived the 1949 amendments.
The only real issue seems to be whether the purpose of the
rule is to protect plaintiff's forum (majority rule) or to
ensure finality of the claim against the non-diverse party
(minority rule). Under either rationale, removal would be
improper in this case as Plaintiff's claim against the
non-diverse party has not been finally adjudicated in the
state courts. As the Court believes the majority rule is the
proper course to follow, however, removal would not be allowed
in this case even if the state court proceedings were final.
We find that this is a separate and independent ground for
allowing the motion to remand.
Ergo, the Magistrate's recommendation will be followed.
Plaintiff's motion to remand this cause is ALLOWED. This cause
is hereby remanded to the Circuit Court, Seventh Judicial
Circuit, Sangamon County, Illinois.