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HILL v. MATON

November 20, 1996

FRED HILL, President/Treasurer, on behalf of PLEASANT GREEN ENTERPRISES, INC., d/b/a DEMERT & DOUGHERTY, INC., Plaintiff,
v.
PAUL MATON, YASAR SAMARAH, MAURICE S.C. FISHER, and JAMES KORLOFF, Defendants. and LOCAL 100-A, UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION AFL-CIO, and EVELYN ERICKSON, MATTHEW MURPHY, CARL MARKS, DENNIS JIACOMO, TAMARA BIROS and SHERRY TOGLIATTI, Individually on their own behalf and on behalf of the class consisting of all production employees of DeMert & Dougherty, Intervenors, v. PLEASANT GREEN ENTERPRISES, INC., YASAR SAMARAH, AND MAURICE S.C. FISHER, Cross-Defendants, and MANUFACTURING CONSOLIDATIONS, INC., an Illinois corporation, UNITED CONSOLIDATIONS, INC., an Illinois corporation, DEMERT & DOUGHERTY, INC., a Nevada Corporation, DOE & ROE, INC., the unknown corporate alter egos of Cross-Defendants Samarah and/or Fisher, and DEMERT & DOUGHERTY UNION HEALTH PLAN, an employee benefit plan, Third-Party Defendants.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on United Food & Commercial Workers International Union's motion to remand. For the reasons discussed hereafter, the motion is granted in part and denied in part.

 I. BACKGROUND1

 In October of 1996, Fred Hill, President and Treasurer of Pleasant Green Enterprises ("Pleasant Green"), brought an action in the Illinois state court against Paul Maton, Yasar Samarah, Maurice S.C. Fisher, and James Korloff. At the heart of the matter is, apparently, a dispute as to either the ownership of an Illinois corporation called Demert and Dougherty, Inc. ("D & D Illinois"), or the ownership of assets purchased from the bankruptcy estate of D & D Illinois. The case also appears to concern the authority of Maton, Samarah, Fisher, and Korloff to act for D & D Illinois.

 Pleasant Green, acting through its sole officer Hill, filed a complaint requesting a preliminary injunction. Maton, Samarah, Fisher, and Korloff filed an answer to the complaint. United Food & Commercial Workers International Union ("the Union"), the Union which represents the employees of D & D Illinois, was apparently allowed to "participate informally" -- whatever that means -- in the matter. Shortly thereafter, the state court permitted the Union to intervene.

 Next, the Union, as an intervenor in the state court, filed a four-count complaint naming Pleasant Green, Samarah, and Fisher as cross-defendants and Manufacturing Consolidations, Inc., United Consolidations, Inc., Demert & Dougherty, Inc. of Nevada ("D & D Nevada"), Doe & Roe Inc., and Demert and Dougherty Union Health Plan as third-party defendants. In count I, the Union seeks a declaratory judgment as to the owner of D & D Illinois; count II alleges a violation of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185, based on a breach of the collective bargaining agreement; count III alleges a violation of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., for failing to pay health benefits; and count IV alleges a violation of the Illinois Uniform Fraudulent Transfer Act, 740 I.L.C.S. 160/1, et seq., against Samarah and Fisher.

 Since the Union's intervenor complaint seeks relief based on federal law -- the LMRA and ERISA -- the listed "cross-defendants" and "third-party defendants," with the exception of Pleasant Green, removed the entire matter to this Court, including the initial ownership/authority dispute between Hill/Pleasant Green and Maton, Samarah, Fisher, and Korloff. *fn2"

 The Union filed a motion to remand.

 II. DISCUSSION

 The Union seeks to remand the entire matter -- i.e., the initial ownership/authority dispute between Hill/Pleasant Green and Maton, Samarah, Fisher, and Korloff and the Union's intervenor complaint -- based on two grounds: (1) removal cannot be predicated on its intervenor complaint and (2) Pleasant Green, a cross-defendant in its intervenor complaint, did not consent to the removal. *fn3" The Court will address each argument in turn.

 A. The Union's Intervenor Complaint

 The Union argues that the determination as to whether a case is removable must be based solely on the allegations of the plaintiff's complaint, subsequent filings being irrelevant. The Union claims that the pertinent complaint that the Court is limited to reviewing in making its remand decision is that which was filed by Hill/Pleasant Green in the initial D & D Illinois ownership/authority action -- that complaint contains no basis for removal. And, because the removing parties are predicating removal based on the Union's intervenor complaint -- a subsequent filing in the state court action to the Hill/Pleasant Green complaint -- the Union argues that this matter must be remanded.

 The Court disagrees.

 The Court is aware that, generally speaking, federal jurisdiction depends on the allegations of the plaintiff's complaint, rather than on issues that come later. See Thomas v. Shelton, 740 F.2d 478, 482 (7th Cir. 1984). The Court is also aware that generally only a voluntary act on the part of the plaintiff can form the basis of removal and intervention by a party with a federal cause of action generally cannot serve as a basis for removal. See Smith v. St. Luke's Hosp., 480 F. Supp. 58, 61 (D.S.D. 1979); Holloway v. Gamble-Skogmo, Inc., 274 F. Supp. 321, 322-23 (N.D. Ill. 1967); Lauf v. Nelson, 246 F. Supp. 307, 310-11 (D. Mo. ...


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