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DOMBROWSKI v. CONTINENTAL CAN CO.

March 31, 1989

RONALD H. DOMBROWSKI, Plaintiff,
v.
CONTINENTAL CAN COMPANY, INC., Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This action came to this District Court via removal from the Circuit Court of Cook County by Continental Can Company, Inc. ("Continental"), asserting diversity of citizenship under 28 U.S.C. § 1332. *fn1" Continental had been sued by Ronald Dombrowski ("Dombrowski") in a three-count Complaint that alleged his retaliatory discharge and earlier retaliatory adverse treatment, in violation of two asserted Illinois public policies:

 
1. Counts I and II charged retaliation for Dombrowski's having filed a worker's compensation claim against Continental.
 
2. Count III charged discrimination against Dombrowski as a handicapped person (the handicap having been caused by the same accident that gave rise to the worker's compensation claim).

 This Court's threshold review of the Complaint *fn2" disclosed that Counts I and II alone would have been nonremovable under Section 1445(c):

 
A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.

 This Court's opinion in Alexander v. Westinghouse Hittman Nuclear Inc., 612 F. Supp. 1118 (N.D. Ill. 1985) explains in detail why Section 1445(c) applies to such Illinois retaliatory-discharge cases (see Ill. Rev. Stat. ch. 48, para. 138.4(h)), and this Court has consistently applied the same analysis since deciding Alexander. But because Count III suffered no such disability, *fn3" the parties' diverse citizenship supported the removal of the case. And because all three counts clearly revolved around "a common nucleus of operative fact" ( United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)), no partial remand of the first two counts under Section 1441(c) appeared appropriate.

 Both parties promptly proceeded with discovery and, in accordance with this Court's scheduling order calling for compliance with this District Court's General Rule 5.00, tendered a draft final pretrial order ("FPTO") on March 27, 1989. This Court's review of the FPTO reflected that Dombrowski was now dismissing Count III. *fn4" Because that left Dombrowski's nonremovable Counts I and II without any anchor to which they could attach as pendent claims, Section 1445(c) and the Alexander analysis are free to operate on the entire case with full force now (as they did not at the time of initial removal).

 At least until recently, conventional wisdom has taught that "the jurisdiction of the federal courts over a properly removed action will not be defeated by later developments in the suit" (14 A. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3739, at 582 & nn. 25-26 and cases cited (2d ed. 1985 and 1988 pocket part)). But the cases so holding (and not all cases have gone that way) must be read in the context of the then-existing version of Section 1447(c), which appeared to tie all remand decisions to the initial posture of the case at the time of removal:

 
If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.

 Effective November 19, 1988, however, Section 1447(c) has been rewritten to read this way:

 
If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

 Because Dombrowski's only surviving claims could not have been removed independently to this District Court, given the absolute prohibition in Section 1445(c), it would seem anomalous to perceive them as claims over which this Court would have subject matter jurisdiction. And even if that question were viewed as possibly permitting a different answer, Carnegie-Mellon University v. Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988) has now resolved an inter-Circuit split by holding that "a district court has discretion to remand a removed case to state court when all federal-law claims have dropped out of the ...


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