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

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


December 23, 1991

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

Shadur

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

MEMORANDUM OPINION AND ORDER

This action has been reassigned to this Court's calendar from that of its colleague Honorable George Marovich. Based on this Court's preliminary review of the Complaint filed by Cloyd Barnes ("Barnes") and of the Notice of Removal ("Notice") filed by P.F.L. Life Insurance Company, f/k/a NN Investors Life Insurance Company ("P.F.L."), *fn1" this Court directs the litigants to address the issues identified in this sua sponte opinion.

 Barnes initially sued not only P.F.L. but also Jerome Liesse and Liesse-Barnum Agency, Inc. (collectively "Liesse Defendants") in the Circuit Court of the Thirteenth Judicial Circuit, LaSalle County, Illinois. But thereafter only P.F.L. filed the operative removal document (the Notice), without offering any explanation in that document as to the absence of Liesse Defendants from the attempted removal of this action. *fn2"

 It is conventional wisdom that all defendants must join in the removal of an action, failing which the absence of the non-joining codefendant or codefendants must be explained (see, among the host of cases to that effect, Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272-73 (7th Cir. 1982) and this Court's opinion in Ryals v. Marco Island Partners, 685 F. Supp. 683, 686 (N.D. Ill. 1988)). Although the removal statutes have since been substantively amended (both in 1988 and again in 1990), nothing in the treatment of the subject of removal by the leading treatises since those amendments suggests that the rule stated in the preceding sentence has been changed (see 14 A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure: Jurisdiction 2d ยง 3731 (2d ed. 1985, and 1991 pocket part); 1 A James Moore & Brett Ringle (and Jo Desha Lucas as to the 1990-91 cum. supp.) Moore's Federal Practice P0.168[3.-2-2] (2d ed. 1990, and 1990-91 cum. supp.)).

 Accordingly counsel for the parties are hereby directed to file in this Court's chambers on or before December 30, 1991:

 

1. by Barnes' counsel, a statement as to whether or not Barnes will waive the nonjoinder of the Liesse Defendants in the Notice if this Court were to determine that their joinder is a precondition to a proper removal of this action; and

 

2. by P.F.L.'s counsel, a submission as to why (if they believe that such is the case) the fact of nonjoinder of Liesse Defendants in an otherwise timely removal does not render the notice of removal defective.

 This Court will act on the matter promptly thereafter.

 Milton I. Shadur, United States District Judge

 Date: December 23, 1991


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