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RODKEY v. W.R. GRACE & CO.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


May 29, 1991

CURTIS V. RODKEY, Plaintiff,
v.
W.R. GRACE & CO., Defendant

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR

MEMORANDUM ORDER

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Defendant W.R. Grace & Co.-Conn. (erroneously named in the Complaint as "W.R. Grace & Co." and referred to in this opinion simply as "Grace") has filed a timely Notice of Removal ("Notice") from the Circuit Court of Lake County, Illinois of this action brought by its ex-employee Curtis Rodkey ("Rodkey"). Although Grace's removal was indeed timely -- Notice para. 2 reflects service on its duly designated recipient on April 24, 1991, so that the Notice was filed on the thirtieth and last day permitted by 28 U.S.C. § 1446(b) *fn1" -- the removal was improvident in terms of federal subject matter jurisdiction. Based on its initial review of the Complaint and Notice, *fn2" this Court sua sponte remands this action to its place of origin.

  Grace relies on diversity of citizenship to establish federal jurisdiction, setting out the bases for that assertion in Notice para. 5. Although Grace incorrectly speaks of Rodkey's Illinois residence rather than his citizenship in Notice para. 5(a), and although the latter is of course the relevant fact for diversity purposes (see 5 Wright & Miller, Federal Practice and Procedure: Civil § 1208, at 101 & n. 9, and cases there cited (1990 ed.)); 13 B id. § 3611, at 516-18 & nn. 27-29, and cases there cited (1984 ed. and 1990 pocket part), that would not likely prove fatal because of the prospects for its cure in accordance with Section 1653. Where Grace founders is on the fact that even assuming the existence of diversity of citizenship, that potential basis for jurisdiction is overridden by the existence of an express prohibition of federal jurisdiction in cases such as this.

 Rodkey's Complaint asserts that after he had sustained a work-related personal injury, he filed a worker's compensation claim with the appropriate state agency (Complaint paras. 2-3). And then, Rodkey asserts (Complaint para. 4):

 

That on or about February 2, 1990, in retaliation for the plaintiff's filing of said Workman's Compensation claim, W.R. Grace & Co. wrongfully discharged plaintiff from said employment, in contravention of the clearly mandated public policy under the Illinois Worker's Compensation Act, Ch. 48, Ill. Rev. Stat., Par. 138.4(h).

 In so many words, then, Rodkey has advanced his claim as one brought under the authority of the Illinois statute that he invokes -- a claim expressly recognized in those terms by the Illinois courts. *fn3" And this Court has consistently held beginning with Alexander v. Westinghouse Hittman Nuclear, Inc., 612 F. Supp. 1118 (N.D. Ill. 1985) that claims of exactly the same nature as that asserted by Rodkey are nonremovable to the federal courts because of the express prohibition of Section 1445(c) (see also, e.g., this Court's opinions in Orsini v. Echlin, Inc., 637 F. Supp. 38 (N.D. Ill. 1986) and Rosell v. Roadway Express, Inc., 702 F. Supp. 681 (N.D. Ill. 1988)). Nothing since Rosell suggests any change in that view -- indeed, Soto v. Tonka Corp., 716 F. Supp. 977 (W.D. Tex. 1989) is identical in its holding and result.

 Hence this District Court has no jurisdiction to accept the removal of this action. In accordance with the principle that subject matter jurisdictional defects must be addressed whenever they appear -- and must be addressed sua sponte even if not raised by the litigants -- Section 1447(c) provides in part:

 

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

 This Court honors that mandate and orders this action remanded to the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois. And because there is clearly no reason for delay, it is further ordered that the certified copy of the remand order shall be mailed forthwith as permitted under this District Court's General Rule 30(b). *fn4"


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