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BARNES v. P.F.L. LIFE INS. CO.

December 23, 1991

CLOYD W. BARNES, Plaintiff,
v.
P.F.L. LIFE INSURANCE COMPANY, etc., et al., Defendants.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

This Court's December 23 and December 26 memorandum opinions and orders (respectively "Opinion I" and "Opinion II") are sufficiently recent, brief and self-explanatory that no repetition of their contents is called for here. *fn1" Suffice it to say that Opinion I required an explanation to be filed by P.F.L. in this Court's chambers on or before December 30 if P.F.L. hoped to avoid the remand of this action to the state court, and Opinion II not only renewed that requirement but found that it had been reinforced by the filing that had been received in the interim from the codefendants collectively termed "Liesse Defendants."

 P.F.L. has now filed a brief statement as to the claimed adequacy of its Notice of Removal. It urges this (Mem. 1-2):

 This matter involves two separate controversies. The first controversy, contained in Counts I through III of the complaint, involves the issue of whether the Liesse defendants negligently secured inadequate insurance for the employer of Barnes. Counts I and II are directed to the Liesse defendants and Count III is directed against PFL under an agency theory.

 The second controversy is whether PFL covers certain medical expenses which Barnes incurred. That controversy revolves around the effect of pre-existing condition language in the group policy and treatments Barnes received prior to the effective date of the policy. The Liesse defendants are not a party to this second controversy.

 Having asserted the claimed separateness of Barnes' Count I and II claims against Liesse Defendants on the one hand and his Count IV claim against P.F.L. on the other, P.F.L. goes on to say (Mem. 2):

 This result [the asserted propriety of a removal by P.F.L. alone] is consistent with Judge Posner's analysis in Thomas v. Shelton, 740 F.2d 478 (7th Cir. 1984).

 P.F.L. then relies on Thomas to say (Mem. 3):

 Therefore, based upon Thomas v. Shelton, this matter was properly removed and the entire matter should proceed in this Court, or in the alternative, this Court should remand only Counts I through III and allow the parties to litigate the ERISA claim in this jurisdiction.

  It is worth noting in passing that Judge Posner's extended discussion in Thomas about what he perceived as the doubtful utility (if any) of 28 U.S.C. § 1441(c) *fn2" in federal-question cases (740 F.2d 482 at 482-84 ) has been overtaken by the 1990 amendment to that statute, which now reads:

 Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law predominates.

 At this point the only purpose for which Section 1441(c) can be used at all is to remove a federal-question claim that "is joined with a separate and independent claim of a nonfederal nature" (14 A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3724, at 72 (1991 pocket part).

 More critically for present purposes, P.F.L. has made either an unintended (and hence Freudian) slip or an intended one in its argument that was first quoted in this opinion. It there labels Barnes' controversies with Liesse Defendants and P.F.L. as "separate"--but Section 1441(c) speaks of the joinder of "separate and independent claims or causes of action" (emphasis deliberately added). *fn3" If it were ever possible to conceptualize dependent rather than independent claims, they would be epitomized by those on which Barnes sues here:

 1. Liesse Defendants would be liable to Barnes for their having shifted the insurance coverage from the previous insurer to P.F.L. only if Barnes loses his claim of ...


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