MEMORANDUM OPINION AND ORDER
ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE.
Plaintiff Florence McEvilly ("plaintiff") filed this action in an Illinois state court on behalf of the estate of her deceased husband, William R. McEvilly ("McEvilly"), alleging that he contracted Acquired Immune Deficiency Syndrome ("AIDS") after receiving an infusion of blood contaminated with Human Immune Deficiency Virus ("HIV"). The American Red Cross (the "Red Cross") removed the suit to federal court pursuant to its federal charter, which provides that the organization may sue or be sued in any court, state or federal. 36 U.S.C. § 2. Plaintiff has moved to remand, contending that this provision does not confer federal jurisdiction over suits against the Red Cross absent an independent jurisdictional basis. For the reasons set forth below, the Court agrees and remands this case to the Illinois court.
For purposes of the pending motion to remand, the Court assumes the allegations of the complaint to be true.
On and after July 24, 1984, McEvilly was a patient in the operating and surgical unit of Rush Presbyterian St. Luke's Medical Center ("Rush") in Chicago. While hospitalized at Rush, McEvilly received one or more infusions of blood which was contaminated with HIV. These infusions were given at the direction of defendant James A. Hunter, a physician and specialist in cardiovascular surgery. Slightly more than four years later, McEvilly was informed that he was suffering from AIDS. McEvilly died on March 10, 1989. Plaintiff asserts that defendants Rush and Hunter were negligent in infusing McEvilly with HIV-contaminated blood and in failing to take steps which might have prevented this from occurring. (Counts I - IV.)
Defendant John L. Showel is a physician and specialist in hematology/oncology. Beginning in May of 1986, Showel provided care and treatment to McEvilly. Plaintiff asserts that Showel was negligent in failing to timely diagnose McEvilly's HIV infection and to treat the opportunistic illnesses associated with that infection. (Counts V, VI.)
Defendants Red Cross and Blood Center of Northern Illinois (the "Blood Center") collect, process, and distribute blood products to health care institutions in Chicago. They supplied to Rush the HIV-contaminated blood which was administered to McEvilly. Plaintiff alleges that the Red Cross and Blood Center were negligent in distributing HIV-contaminated blood and in failing to take steps which might have prevented such blood from being administered to McEvilly. (Counts VII-VIII.) In or about January of 1987, the Red Cross and Blood Center merged and were succeeded by defendant Lifesource, which has assumed the liabilities of each of its predecessors. Consequently, plaintiff alleges that Lifesource is liable to her to the same extent as the Red Cross and Blood Center. (Id.)
Plaintiff filed this suit in the Circuit Court of Cook County on August 13, 1990. The Red Cross was served with summons on August 20, 1990. The Red Cross filed a notice of removal on September 13, 1990, within the 30-day period provided for in 28 U.S.C. § 1446(b), contending that 36 U.S.C. § 2 confers federal subject matter jurisdiction over this suit and that removal is therefore authorized under 28 U.S.C. § 1441.
Plaintiff has moved to remand the case to the Illinois court, contending that federal jurisdiction over this suit is lacking. No flaw has been cited in the mechanics of the removal. Rather, the sole question presented is whether or not the provisions of the Red Cross' federal charter supply federal subject matter jurisdiction over suits such as this one.
The sole potential source of federal subject matter jurisdiction over this case lies in the statutory charter of the Red Cross. In relevant part, that charter provides:
The name of this corporation shall be "The American National Red Cross", and by that name it shall have perpetual succession, with the power to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States. . . .
36 U.S.C. § 2 (emphasis supplied). Resolution of the motion to remand turns upon whether the provision that the Red Cross may sue or be sued in any United States court, state or federal, simply confers upon the Red Cross the capacity to litigate or, in addition, extends the subject matter jurisdiction of the federal courts to all cases in which the Red Cross is a party.
The federal district courts are nearly evenly divided on this issue.
To date, it appears that at least 19 courts have considered this question. Of these courts, eleven have concluded that the charter does not confer federal jurisdiction over suits to which the Red Cross is a party. See Collins v. American Red Cross, 724 F. Supp. 353, 354 n. 1 (E.D. Pa. 1989) (collecting cases and finding no jurisdiction). See also McCool v. American Red Cross, 1991 U.S. Dist. LEXIS 2818, 1991 WL 32857 (E.D. Pa. Mar. 6, 1991); Torres v. Ortega, No. 89 C 8626 (N.D. Ill. Feb. 16, 1990) (Williams, J.); Doe v. American Red Cross, 727 F. Supp. 186 (E.D. Pa. 1989).
Eight others have concluded that the charter does create federal jurisdiction. See Collins, 724 F. Supp. at 354 n. 2 (collecting cases). See also Gladstone v. American National Red Cross, Civil No. 90-145-D (D.N.H. May 24, 1990). On April 10, 1991, the Eighth Circuit joined this second camp, concluding without extensive analysis that the phrasing of the Red Cross charter is sufficient to confer federal jurisdiction. Kaiser v. Memorial Blood Center of Minneapolis, Inc., 938 F.2d 90 (8th Cir. 1991). Having reviewed these authorities, this Court concludes that the former are better reasoned.
At the outset, the Court notes, as have other courts, that the "sue and be sued" provision at issue is found in a section of the statutory charter which identifies the corporation and sets forth its powers. Consequently, the context of the provision, as well as the language of the provision itself, do not constitute a plain and unambiguous grant of subject matter jurisdiction upon the federal courts; to the contrary, both are more consistent with a simple grant of authority to litigate upon the corporation. See Anonymous Blood Recipient v. William Beaumont Hospital, 721 F. Supp. 139, 141 (E.D. Mich. 1989). See also Bankers' Trust Co. v. Texas & Pacific Ry. Co., 241 U.S. 295, 305, 36 S. Ct. 569, 571, 60 L. Ed. 1010 (1916) (statutory charter providing that railway could sue or be sued in all United States courts merely conferred capacity to litigate, not "exceptional or privileged jurisdiction.")
The courts which have concluded that the charter does supply federal jurisdiction have relied primarily upon Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824). In that case, the Bank had sued the auditor of the State of Ohio in federal court, seeking return of a tax which the state had imposed upon and seized from the Bank. The auditor claimed, inter alia, that the federal courts lacked jurisdiction over the dispute. However, the Supreme Court, in an opinion authored by Chief Justice Marshall, concluded that language incorporated into the statutory charter of the United States Bank sufficed to confer federal jurisdiction over suits involving the bank. Like the Red Cross charter, the charter before the Court in Osborn permitted the Bank "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all State Courts having competent jurisdiction, and in any Circuit Court of the United States." See 22 U.S. at 817. A previous version of the charter creating the Bank's predecessor did not expressly mention the federal courts, but simply authorized the Bank to sue and be sued "in Courts of record, or any other place whatsoever"; and in Bank of the United States v. Deveaux, 9 U.S. (5 Cranch.) 61, 3 L. Ed. 38 (1809), the Supreme Court had found that general language insufficient to confer federal jurisdiction. However, in Osborn, Justice Marshall found the specific mention of the federal courts enough to require a different result:
These words seem to the Court to admit of but one interpretation. They cannot be made plainer by explanation. They give, expressly, the right "to sue and be sued," "in every Circuit Court of the United States," and it would be difficult to substitute other terms which would be more direct and appropriate for the purpose.
22 U.S. at 817. In dissent, Justice Johnson suggested that the majority opinion was result-oriented and founded upon practical concerns:
I have very little doubt that the public mind will be easily reconciled to the decision of the Court here rendered; for, whether necessary or unnecessary originally, a state of things has now grown up, in some of the States, which renders all the protection necessary, that the general government can give to this Bank. The policy of the decision is obvious, that is, if the Bank is to be sustained . . . .