the statutory "arising under" jurisdiction of 28 U.S.C. § 1331. S.C., slip op., part IV.A., at 11. Justice Souter, writing for the majority, dismissed as "erroneous" the plaintiff's efforts to invoke a rule applicable only to 28 U.S.C. § 1331 analysis to a case involving a grant of jurisdiction that was "separate and independent" of 28 U.S.C. § 1331 jurisdiction. Id.
Given the Supreme Court's jurisdictional analysis in S.G., the discretion conferred by 28 U.S.C. § 1441(c) to remand cases removed pursuant to § 1331 jurisdiction, does not apply to the instant case. The Supreme Court has determined that removal of the case is proper pursuant to 36 U.S.C. § 2 jurisdiction, a jurisdictional grant separate and independent from § 1331 jurisdiction. Thus, the Court does not have the discretion under 28 U.S.C. 1441(c) to remand the claim that applies to the Red Cross. For these reasons, that portion of Roe's motion must be denied. The Court is then left to determine whether it can and should exercise its discretion to remand the remainder of the case to the state court.
(b). Remanding the Claims Against Non-Red Cross Defendants
The instant case states a series of claims for negligence - tort theories which presents claims solely of state law. Though these state law claims against the non-Red Cross defendants are properly before the federal court as a result of this Court's assertion of supplemental jurisdiction over those claims, nonetheless, under subsection (c) of § 1441, the Court "may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates." Thus the authority to remand the claims against the non-Red Cross defendants is wholly within the sound discretion of the Court.
Because the Court must retain jurisdiction over those claims filed in the instant case against the Red Cross, if, in the exercise of its discretion, the Court were to decide to remand the case back to state court, it could only remand to the state court those claims brought against the non-Red Cross defendants. This would necessitate splitting the instant case into two separate cases. However, if the Court were to retain jurisdiction over the claims brought against the non-Red Cross defendants, the entire case would remain together to be heard in one court.
Roe asserts that "his claims against the defendants are factually interrelated to such a degree that concurrent litigation in the state court and federal court would be impractical and unduly burdensome on all parties." And while Roe vigorously argues that the Court should remand this case back to the state court, he does so under the assumption that the Court has within its discretion the ability to remand the entire case, including the claim against the Red Cross. But as discussed in part II.B.2.(a). above, this Court does not have that discretion because the case against the Red Cross must remain in the federal court. While it is clear that the Court does have the discretion to remand the claims against the non-Red Cross defendants back to state court, doing so would only frustrate Roe's earnest preference to have the entire case heard in one judicial proceeding.
Likewise, the Red Cross points out that interests of "judicial economy and efficiency would be best served by a single action" in one forum. The Red Cross also points out several additional potential problems in trying different aspects of the case in different courts: 1) the possibility of potentially inconsistent rulings; 2) the Red Cross would be subject to third party discovery in state court thus subjecting it to two different discovery schedules; 3) the possibility that state court defendants may seek cross-claims for contribution from the Red Cross; and, 4) the additional costs Roe may have to incur as a result of litigating in two forums. The Red Cross asserts that these reasons, as well as others not yet foreseen, would increase the burden of all of the parties if the case were tried in two courts.
Under these circumstances, the Court agrees with both parties that dividing the case and forcing the parties to litigate in two forums would be unduly burdensome. For all of the above reasons, the Court should decline to exercise its discretion under 28 U.S.C. § 1441(c) to remand the claims against the non-Red Cross defendants back to state court. Instead, the Court should assert supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over those claims, and have the entire case tried in one court.
The motion to remand the case to the Circuit Court of Cook County is denied. The plaintiff's objections to the Red Cross' removal petition are overruled. The entire case is to remain in this Court.
IT IS SO ORDERED.
DATED: August 21, 1992
JAMES B. PARSONS
United States District Court Judge