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MCEVILLY v. RUSH PRESBYTERIAN ST. LUKE'S MED. CTR.

April 26, 1991

FLORENCE McEVILLY, Special Administrator of the Estate of WILLIAM R. McEVILLY, Deceased, Plaintiff,
v.
RUSH PRESBYTERIAN ST. LUKE'S MEDICAL CENTER, JOHN L. SHOWEL, JOHN L. SHOWEL, M.D., LTD., JAMES A. HUNTER, AMERICAN RED CROSS, THE BLOOD CENTER OF NORTHERN ILLINOIS, and LIFESOURCE, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE.

 I. INTRODUCTION

 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.

 II. FACTS

 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.

 III. ANALYSIS

 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, ...

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