The opinion of the court was delivered by: JAMES B. PARSONS
MEMORANDUM OPINION AND ORDER
In 1984, the plaintiff, Richard Roe
("Roe"), underwent a surgical procedure at the Little Company of Mary Hospital here in Chicago for treatment and removal of an enlarged spleen. He received transfusions of multiple units of blood, some of which apparently was contaminated with the Human Immunodeficiency Virus ("HIV"). Roe filed this suit in the Circuit Court of Cook County alleging negligence against the doctors involved in the splenectomy, against the hospital and against the suppliers of the blood he had received.
One defendant, the American Red Cross ("Red Cross"), removed the case to federal court pursuant to 28 U.S.C. Section 1441(a). Plaintiff Roe filed a timely objection to the removal, asserting that this Court did not have subject matter jurisdiction over the state negligence claims, and did not gain original jurisdiction by the fact that the Red Cross was created by federal statute. On August 25, 1992, following the Supreme Court's decision in American National Red Cross v. S. G., 120 L. Ed. 2d 201, 112 S. Ct. 2465 (1992), this Court overruled Roe's objection and denied his motion for remand.
Roe argued that removal was improper because not all of the defendants consented to removal. The Red Cross countered that only those defendants with substantive rights to removal need to consent to removal, and that, because only the Red Cross had a right to remove in this case, it was unnecessary to obtain the consent of the other defendants.
The Seventh Circuit has not addressed this issue. As far as this Court can tell, none of our district courts has reached the issue either. The Red Cross cited opinions from other districts which hold that the unanimous consent of codefendants is not required. See Raybould v. American Red Cross, H-91-754 (S.D. Tex. May 28, 1991); Parisi v. Rochester Cardiothoracic Associates, P.C., 91-CV-6387T (W.D.N.Y. June 29, 1992); Garcia v. American Red Cross, CV-92 2513-WJR (TX) (C.D. Calif. Aug. 12, 1992); Murphy v. St. Vincent Hospital, Inc., C.A. No.: 92-11671-Y (D. Mass. Sept. 12, 1992). Roe pointed out, on the other hand, that the Fifth Circuit has held that the consent of all codefendants is required. See Doe v. Kerwood, 969 F.2d 165 (5th Cir. 1992).
This Court, of course, is not bound by any of those decisions. What is needed is a thoroughgoing analysis that will at least resolve the issue for the case.
This Court stayed proceedings on Roe's original objections to removal pending the Supreme Court's decision in American National Red Cross v. S.G. & A.E., 120 L. Ed. 2d 201, 112 S. Ct. 2465 (1992). In that case, the Supreme Court held that the Red Cross's charter -- 36 U.S.C. Sec. 2 -- gives the Red Cross the right "to removal from state to federal court of any state-law action it is defending. S.G., 112 S. Ct. at 2467. Based on that decision, this Court confirmed the right of the Red Cross to have removed this action to federal court.
However, the Supreme Court in S.G. had also determined that the Red Cross's federal jurisdiction is not "arising under" jurisdiction based on 18 U.S.C. Sec. 1331, but is "based on a separate and independent jurisdictional grant. In this case, it would be the Red Cross charter's 'sue and be sued' provision." S.G., 112 S. Ct. at 2472. In other words, federal jurisdiction over the Red Cross is "party-based," independent of any other basis for federal jurisdiction such as diversity or the existence of a federal question.
This implies that the Red Cross, by virtue of its statutorily-based jurisdictional grant, is not bound by the rules governing jurisdiction based on 28 U.S.C. Sec. 1331. In fact, the Supreme Court in S.G. explicitly held that a party's arguments based on the "well-pleaded complaint" rule under that section "erroneously invoke that rule outside the realm of statutory 'arising under' jurisdiction, i.e., jurisdiction based on 28 U.S.C. Sec. 1331, to jurisdiction based on a separate and independent jurisdictional grant." S. G ., 112 S. Ct. at 2472.
In other cases involving parties with statutory grants of party-based jurisdiction, courts have held that the consent of codefendants is not required for removal. See, e.g., Davis v. FSLIC, 879 F.2d 1288, 1289 (5th Cir. 1989) (joinder by codefendants is not required where "an independent basis for removal by FSLIC alone" exists); Ely Valley Mines, Inc. v. Hartford Indemnity Co., 644 F.2d 1310, 1313 (9th Cir. 1981) (federal employees are not required to join codefendants to remove a case to federal court). Some of the courts which have considered this issue in light of the decision in S.G. have applied the rule to removal by the Red Cross. See Parisi v. Rochester Cariothoracic Assoc., 91-CV-6387T (W.D.N.Y. June 29, 1992); Garcia v. American Red Cross, CV-92 2513-WJR (TX) (C.D. Calif. Aug. 12, 1992). But see Doe v. Kerwood, 969 F.2d 165 (1992) (discussed below).
Roe argues that, in those cases not involving the Red Cross, the parties who were exempt from the consent requirement had specific statutory removal provisions upon which to rely. The Red Cross's removal power, on the other hand, is statutorily based and is applied by judicial decision. Citing Kerwood, Roe concludes that the Red Cross must comply with the requirements of the general removal statute.
In fact, the decisions referred to above at least implicitly do rely on the rule that only those parties who have a substantive right to removal are required to consent to ...