the Court does not believe that the general legal maxims regarding removal will be infringed.
To begin, the Court does not understand why the state court permitted the Union to intervene in this matter by filing a complaint. As discussed, the initial action between Hill/Pleasant Green and Maton, Samarah, Fisher, and Korloff, involved a dispute as to the ownership of either D & D Illinois or the assets purchased from D & D Illinois' bankruptcy estate and the authority of the individual named defendants to act for D & D Illinois.
The Union, admittedly, has no direct interest in that action. The Union apparently wants to know who has the authority to bind D & D Illinois so it knows who to deal with. That's fine, but why was the Union permitted to file a complaint in the very same action against numerous defendants (listed as "cross-defendants" and "third-party defendants") raising issues completely unrelated to the initial ownership/authority dispute between Hill/Pleasant Green and Maton, Samarah, Fisher, and Korloff?
The initial Hill/Pleasant Green complaint and the Union's intervenor complaint are two separate, independent, "unrelated" cases. Accordingly, for purposes of determining jurisdiction, the Court will split the single state court action and treat it as two independent cases.
Treating the Union's intervenor complaint as a separate and distinct civil action means that the Union should be characterized as a "plaintiff" and the "cross-defendants" and "third-party defendants" should be characterized as "defendants." Additionally, splitting this matter into two separate civil actions means that the Court will respect the legal maxims associated with removal jurisdiction, i.e., jurisdiction depends on the allegations in the plaintiff's complaint -- here, the Union's complaint -- rather than on issues that come later.
Because the Union's complaint raises questions of federal law, the Court will retain jurisdiction over it -- assuming, as discussed below, that it was properly removed to this Court. The ownership/authority dispute between Hill/Pleasant Green and Maton, Samarah, Fisher, and Korloff, however, will be remanded.
B. Consent to Removal
Next, the Union argues that even if removal can be based on its intervenor complaint, Pleasant Green -- listed as a "cross-defendant," but realigned by the Court as a "defendant"--did not consent or join in the removal, thus, the matter should be remanded.
The removing parties argue that Pleasant Green is a nominal defendant, thus, its joinder or consent is irrelevant. The Court agrees.
"A petition for removal fails unless all defendants join it." Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994). If, however, the non-joining defendant is a nominal party, joinder is unnecessary. Id. "A defendant is nominal if there is no reasonable basis for predicting that it will be held liable." Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993). Based on the allegations in the Union's complaint, the Court does not understand how Pleasant Green could be held liable.
Count I seeks a declaratory judgment as to the owner of D & D Illinois. As noted, however, the Union admittedly has no direct interest in determining the owner of D & D Illinois. In fact, the Union would not even be a party in the resolution of that dispute. Accordingly, at this stage of the litigation, since the Union has no stake in the ownership determination, it is highly unlikely that the Court would allow the declaratory judgment action to proceed. See Government Suppliers Consol. Serv. v. Bayh, 975 F.2d 1267, 1274 (7th Cir. 1992), cert. denied, 506 U.S. 1053, 122 L. Ed. 2d 131, 113 S. Ct. 977 (1993).
Count II is a claim under the LMRA for breach of the collective bargaining agreement and count III is brought under ERISA for failing to pay health care benefits. The complaint, however, provides no factual basis as to how Pleasant Green, a separate entity, could be liable for breach of a collective bargaining agreement entered into by D & D Illinois, see Plumbers' Pension Fund v. Niedrich, 891 F.2d 1297, 1299 n.8 (7th Cir. 1989) ("Persons who are not parties to a collective bargaining agreement cannot be sued under the LMRA."), cert. denied, 495 U.S. 930, 109 L. Ed. 2d 499, 110 S. Ct. 2169 (1990), or how Pleasant Green could be held liable under ERISA for D & D Illinois' failure to pay certain benefits.
The complaint states that Pleasant Green has an "interest" in D & D Illinois. Presumably, this means an ownership interest, i.e., Pleasant Green is a shareholder of D & D Illinois. If so, the complaint fails to provide a factual basis for imposing liability on a shareholder for the breaches and debts of the corporation D & D Illinois.
In one of the pleadings, the Union stated that Pleasant Green could be liable for breaching the collective bargaining agreement under a "successor employer" theory, but the complaint provides no factual support for such a theory. See Chicago Dist. Council of Carpenters Pension Fund v. G & A Installations, Inc., 1996 U.S. Dist. LEXIS 1444, No. 95 C 6524, WL 66098 *3-4 (N.D. Ill. Feb. 8, 1996).
Count IV is a fraud claim brought against only Samarah and Fisher; thus, that count cannot provide the basis for liability against Pleasant Green either.
In summary, based on the allegations in the Union's complaint, the Court does not understand how Pleasant Green could possibly be held liable. Accordingly, the Court concludes that Pleasant Green is a nominal defendant; thus, its joinder is unnecessary for removal purposes.
Based on the preceding analysis, the Court remands the ownership/authority action commenced by Hill/Pleasant Green against Maton, Samarah, Fisher, and Korloff, but retains jurisdiction over the Union's complaint.
Date: NOV 20 1996
JAMES H. ALESIA
United States District Judge