pendent plaintiffs and pendent defendants (indeed, historically pendent-party jurisdiction has almost always been used to add pendent defendants ( Thomas, 740 F.2d at 487)).
This Court holds that under Section 1441(c) as construed under Finley, it has the discretion to exercise or not to exercise pendent-party jurisdiction over NHRI. Determination of the direction in which it should exercise that discretion demands a threshold examination of the state-law claims themselves.
As already indicated, Albers allege violations of the Mental Health and Developmental Disabilities Code (Ill.Rev.Stat. ch. 91-1/2) (the "Code") and the Nursing Home Care Reform Act (id. ch. 111-1/2, PP4151-4153) (the "Act"). NHRI raises two grounds for dismissal of those claims.
First, it is argued, the Complaint does not cite to the statutes with enough specificity to put NHRI on notice as to what particular statutory violations are alleged. That objection is without merit, and even if meritorious could readily be cured. This opinion therefore turns to the more troublesome second objection.
On that score NHRI argues that Albers have no private right of action under the portions of the Code referred to in Complaint P142. Apparently there is only one case even remotely related to that issue: Montague v. George J. London Memorial Hosp., 78 Ill.App.3d 298, 396 N.E.2d 1289, 33 Ill. Dec. 565 (1st Dist. 1979), which dealt with an entirely different section of the Code.
Implications or nonimplications of private rights of action are a much-mooted area under Illinois law, just as under federal law. Last year the Illinois Supreme Court reiterated its traditional test on that subject ( Corgan v. Muehling, 143 Ill.2d 296, 312-13, 574 N.E.2d 602, 609, 158 Ill. Dec. 489 (1991)):
Implication of a private right of action is appropriate only if: (1) plaintiff is a member of the class for whose benefit the Act was enacted; (2) it is consistent with the underlying purpose of the Act; (3) plaintiff's injury is one the Act was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the Act.
No Illinois Supreme Court case has ever applied the test to any portion of the Code.
This case as asserted against NHRI under the Code thus seems a prime candidate for application of the principle voiced in a number of decisions by our Court of Appeals, typified by this statement from Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985):
A party who wants a court to adopt an innovative rule of state law should litigate in state rather than federal court (if it can; it cannot if the defendant removes the case to federal court). Federal judgs are disinclined to make bold departures in areas of law that we have no responsibility for developing.
Accord, such cases as Gust K. Newberg Construction Co. v. E.H. Crump & Co., 818 F.2d 1363, 1368 (7th Cir. 1987).
Albers cannot be faulted in Afram Export terms: After all, they did call upon the state courts to adjudicate their rights, while it was defendants who then shifted the field of battle to federal territory. But now one defendant--NHRI--could remain on this federal territory only as a tagalong to other and different claims against other defendants, while its own liability vel non (at least in major part) is best suited to resolution in the original forum. Jurisprudential considerations plainly counsel the resolution of the statutory claim against NHRI under the Code in the state courts rather than here.
Under those circumstances it is certainly the better part of discretion to dispatch all surviving claims against NHRI back to the Circuit Court of Cook County, rather than requiring Ron and Cameron and NHRI to do simultaneous battle in two different courtrooms. Certainly there is nothing in the claim under the Act (which does grant a private cause of action) or in the common law claim (which appears to sound in false imprisonment, although NHRI claims that it is too vaguely pleaded) that should cause those claims to be retained for trial together with the other surviving claims that have been brought by all Albers (not just by Ron and Cameron, who are the only plaintiffs now suing NHRI) against the defendants other than NHRI.
Accordingly this Court exercises the power conferred on it by Section 1441(c) by remanding all the state law claims against NHRI to the Circuit Court of Cook County. As permitted by this District Court's General Rule 30(b), it orders the Clerk of Court to mail the certified copy of the remand order forthwith.
So much of the Complaint is now gone, and so much of what is left must now be understood in different ways, that its patchwork remnants serve no one's interests in their present form. This Court therefore dismisses the Complaint, with leave granted to the remaining Albers to file in this Court's chambers, on or before March 23, 1992, a new one that conforms to the new shape of the case.
It would really be foolish and not particularly productive to go back through this almost endless opinion in an effort to condense its many holdings into summary form. Wait for the movie, or at least the paperback reprint (and not merely in F.Supp.). To summarize the results, however, is relatively easy: This Court has (1) granted in part and denied in part the motions to dismiss of P & A, Michael Richardson and Naiditch; (2) dismissed Joshua and Amy Alber and NHI Defendants as parties to the case; and (3) dismissed all claims against NHRI except the claims of Ron and Cameron Alber for asserted violations of the two Illinois statutes and asserted false imprisonment, all of which are remanded to the Circuit Court of Cook County.
Finally this action is set for a status hearing at 8:45 a.m. on March 30, 1992 for appearance by counsel for the remaining parties. At that time the parties should be prepared to discuss the time for requiring defendants to plead to the Second Amended Complaint, as well as further proceedings in the case.
Milton I. Shadur
United States District Judge
Date: March 3, 1992
It is pretty much self-evident that the length of a judicial opinion usually bears a high degree of correlation (though not necessarily one-to-one) to the number and complexity of the issues involved. This opinion is no exception to that. What is less evident to consumers than to producers of judicial opinions is that all too frequently there is a far more than linear increase in the amount of work that is involved in generating opinions of greater complexity (and hence greater length) as against those of lesser complexity and length. Again this opinion is no exception to that.
Unfortunately the lawyers involved, whose responsibility it is to know (at least at the outset) their lawsuits and the issues involved better than the judges to whose calendars those lawsuits are assigned, do not always recognize even the key issues. Nor do they always provide the key authorities to deal with those issues. All of this is a prelude to acknowledging the splendid work of this Court's law clerk Jeremy Feigelson, Esq. in spotting both the issues and numerous authorities not tendered by the litigants, as well as in mastering the difficulties of producing a draft opinion with a logical structure.
Having said that, this Court must add the point that it always makes when it has this kind of occasion to pay tribute to the outstanding work of one of its uniformly outstanding law clerks: Every draft opinion submitted by a law clerk is reviewed and reworked sentence by sentence (indeed, word by word) by this Court, and as part of that process this Court also reads every one of the authorities that is cited in each of its opinions. If then there is anything to find fault with in this or any other completed opinion, that fault is ascribable to this Court and not to the fine work of its clerks.