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 removal. Moore's Federal Practice explains that:
another way of stating the general rule, is this. Before the plaintiff's choice of the state forum can be avoided, unanimity among all parties substantively entitled to remove is required.
1A James Wm. Moore and Brett A. Ringle, Moore's Federal Practice para. 0.168 [3.-2-2], at 549 (2d ed. 1992). In cases involving diversity jurisdiction or federal question jurisdiction this would mean that all defendants would be required to join in the removal petition because all parties would be substantively entitled to removal. On the other hand, where a defendant can not independently move for removal, a failure to gain that defendant's consent would not render the removal petition defective. See Rey v. Classic Cars, 762 F. Supp. 421 (D. Mass. 1991); Hill v. City of Boston, 706 F. Supp. 966 (D. Mass. 1989); Gorman v. Abbott laboratories, 629 F. Supp. 1196 (D. R.I. 1986); Intercoastal Refining Co. v. Jalil, 487 F. Supp. 606 (S.D. Tex. 1980); McKinney v. Rodney C. Hunt Co., 464 F. Supp. 59 (W.D.N.C. 1978).
In this case, the Red Cross, by virtue of its independent party-based jurisdictional grant, is the only party with a substantive right to remove the matter to federal court. It follows that the Red Cross was not required to gain the consent of its codefendants in its petition for removal.
Therefore, this Court declines to follow the Fifth's Circuit's decision in Doe v. Kerwood, 969 F.2d 165 (5th Cir. 1992) in which the court held that unanimous consent of codefendants was required. The Kerwood court applied the unanimous joinder rule as if it were dealing with diversity or federal question jurisdiction. As noted, however, jurisdiction over the Red Cross is party-based. S.G. 112 S. Ct. at 2467.
By the position the Court here adopts, it does not mean to sacrifice the interests of unwilling codefendants who prefer to remain in state court. In the Court's opinion, those interests may still be protected by the federal supplemental jurisdiction statute, 28 U.S.C. Sec. 1367. The Court, therefore, after finding that it may keep all of the defendants in this action, turns to a consideration of Section 1367 in deciding whether any of the defendants other than the Red Cross should be returned to state court.
Under Section 1367(c) a court:
may decline to exercise supplemental jurisdiction over a claim under subsection (a) if --
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. Sec. 1367(c). The first three of these considerations find no application here. The complaint states familiar, state-law claims; none of those claims predominates over the claims against the Red Cross; and because this Court rejects any request to dismiss the Red Cross. Under the fourth "catch-all" category, the only compelling reason for declining jurisdiction might be that this Court has no jurisdiction over the Respondents in Discovery who are named as such pursuant to Ill. Rev. Stat. Ch. 110, para. 2-402. It is true that under the Illinois statute, the state court was given in personum jurisdiction over the respondents. See, e.g., Guertin v. Guertin, 204 Ill.App.3d 527, 149 Ill. Dec. 643, 561 N.E.2d 1339 (3d Dist. 1990). This Court derived similar jurisdiction over the respondents when this case was removed. Under these circumstances, this Court finds no reason for declining to exercise supplemental jurisdiction over all of the codefendants in the case.
Because the Red Cross charter confers on this Court original jurisdiction, to the exercise of which the Red Cross requests, and because this Court finds that supplemental jurisdiction over the remaining defendants is proper, Roe's motion for remand should be and the same hereby is denied.
Plaintiff Roe's Motion to Remand Based on Failure to Join All Defendants is denied. The entire case will remain with this Court.
IT IS SO ORDERED.
DATED: December 2, 1992
James B. Parsons
United States District Court Judge