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KATONAH v. USAIR

February 14, 1995

JANINE KATONAH, et al., Plaintiffs,
v.
USAIR, INC., a corporation, THE BOEING COMPANY, a corporation, and GERALD E. FOX, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are Plaintiffs' motions to remand their cases to the Circuit Court of Cook County, Illinois, where the cases were initially filed. *fn1" For the following reasons, the motions are granted.

 BACKGROUND2

 All 132 passengers and crew of USAir's Flight 427 died on September 8, 1994, when the airplane crashed while en route from the Chicago O'Hare International Airport to the Greater Pittsburgh International Airport. Plaintiffs' cases arise from that tragedy naming as defendants USAir, Inc. ("USAir"), The Boeing Company ("Boeing"), Gerald E. Fox ("Fox"), and Tim Molloy ("Molloy"). *fn3"

 This is the court's second opinion concerning Flight 427. The court first encountered these matters in the context of a remand issue after USAir had removed three cases from the Circuit Court of Cook County, Illinois, to the United States District Court: McCoy v. USAir, No. 94 C 6295, Ruzich v. USAir, No. 94 C 6436, and Van Bortel v. USAir, No. 94 C 6437. These three cases were then reassigned to this court based on relatedness pursuant to Rule 2.31 of the Rules of the United States District Court for the Northern District of Illinois ("Local Rules").

 Since the issuance of the court's November opinion, the MDL has convened and ordered that all cases related to the Flight 427 crash be transferred to the Western District of Pennsylvania. Also, the National Transportation Safety Board published its "Operations Group Chairman's Factual Report," Docket Number SA-510, with various addenda ("Report"). A portion of the Report considered the origin of a noise heard by a passenger on the earlier leg of Flight 427 that was later communicated to Fox. As a result of the Report, USAir decided to remove, once again, the McCoy, Ruzich, and Van Bortel cases and, for the first time, remove eight other cases. The current case numbers for the eleven cases are as follows: Ardhaldjian v. USAir, No. 94 C 7085, Bruckelmeyer v. USAir, No. 94 C 7169, Ruzich v. USAir, No. 94 C 7170, McCoy v. USAir, No. 94 C 7171, Van Bortel v. USAir, No. 94 C 7174, Kinsey v. USAir, No. 94 C 7175, Kafcas v. USAir, No. 94 C 7298, Lindstrom v. USAir, No. 95 C 179, McNamara v. USAir, No. 95 C 180, Evans v. USAir, No. 95 C 181, Alpern v. USAir, No. 95 C 280. In this opinion, the court addresses the propriety of USAir's removal as to the eleven cases involved.

 DISCUSSION

 As a fundamental consideration, the court addresses its jurisdiction. Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379, 382, 28 L. Ed. 462, 4 S. Ct. 510 (1884) ("The first and fundamental question is that of jurisdiction . . . . This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."); United States v. Smith, 992 F.2d 98 (7th Cir. 1993). The court notes that, at a minimum, it has jurisdiction to consider the issues raised as to all Flight 427 cases. Although the MDL has issued an order transferring all Flight 427 cases to the Western District of Pennsylvania for pretrial proceedings, the MDL order was constructed to be subject to the consent of the transferor court. MDL Transfer Order, Docket No. 1040, In Re Air Crash Near Pittsburgh, Pennsylvania, on September 8, 1994 (filed Dec. 1, 1994) ("MDL Order"). Furthermore, concerning the Northern District, the MDL Order was limited to the one known case, Katonah, 94 C 5539. In a footnote, the MDL panel suggested it would consider the other related cases of which it was aware "as potential tag-along actions." Id. As such, this court sees fit that it address the issues surrounding the remand motions before it, rather than transferring the cases to the MDL.

 A. 28 U.S.C. § 1446(b)

 The first issue raised is whether USAir may remove the McCoy, Ruzich, and Van Bortel cases a second time. The statue governing the procedure for removal is 28 U.S.C. § 1446. Subsection (b) is the specific language which controls the first issue here. The second sentence of subsection (b) provides as follows:

 
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . .

 28 U.S.C. § 1446(b) (emphasis added). In its November opinion, the court found that the initial pleading was not removable and remanded the three cases back to state court. Yet the court noted that the law would allow the cases to be removed yet again if Fox were to be dismissed from the state actions during the course of the state litigations. Katonah v. USAir, 868 F. Supp. at 1036 n.5. Defendants did not attempt to have Fox dismissed from any of the state actions. Therefore, USAir ...


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