MEMORANDUM OPINION AND ORDER
Humana Health Plan, Inc. ("Humana")
has filed its Notice of Removal ("Notice") to bring this action, which had originally been filed in the Circuit Court of Cook County by Rodney Bullock ("Bullock") against both Humana and Travelers Insurance Company ("Travelers"), to this District Court. Humana's removal is predicated on the fact that one of Bullock's claims against it (Count II) is advanced under the Americans with Disabilities Act and hence implicates a federal question. This action has just been reassigned to this Court's calendar in consequence of a 28 U.S.C. § 294(b)
recusal by its colleague Honorable John Grady, and this Court hastens to issue this sua sponte opinion to direct both sides' counsel to speak to the defect in removal procedure identified here.
In the opening paragraph of the Notice, Humana identifies the removal as having been undertaken pursuant to Sections 1441 and 1446. That is of course accurate, but it should be made plain at the outset that removal is authorized under Section 1441(a) and (b), but not under Section 1441(c). All of Bullock's stated claims stem from the same set of circumstances (what the seminal decision in American Fire & Cas. Co. v. Finn, 341 U.S. 6, 14, 95 L. Ed. 702, 71 S. Ct. 534 (1951) described as "a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions").
That being true, the uniform rule that all defendants must join in or consent in writing to removal clearly applies here ( Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994)). Indeed, Roe, id.--in the course of rejecting a claim by American National Red Cross that its independent basis for invoking federal-question jurisdiction should exempt it from complying with the ordinary removal rules in that respect--also signals that in all likelihood Travelers' joinder in or written consent to Humana's removal was essential in all events.
Humana's brief Notice is totally silent as to Travelers' status in this action, so that this Court has no idea whether Travelers had or had not already received a copy of the Complaint as of the August 18, 1997 date of filing of the Notice. But Bullock's Complaint had been filed in the Circuit Court fully 3-1/2 weeks before that date (on July 25), and Travelers is scarcely in the category of a defendant that is difficult to locate and to serve with process--so it would seem that there is a strong likelihood that Humana's Notice was defective for the nonjurisdictional reason
that Travelers was a nonparticipant in the removal.
Under such circumstances involving a nonjurisdictional flaw, this Court does not of course issue a sua sponte remand order (see In re Continental Cas. Co., 29 F.3d 292, 294-95 (7th Cir. 1994))--not the least of the reasons for such inaction being the fact that it is of course possible that Bullock, despite his choice of a state court forum, may be prepared to waive the defect. But in accordance with the procedure approved in Continental Cas., id. at 295, the parties are ordered to file the following responses in this Court's chambers on or before September 17, 1997:
1. on behalf of Bullock, either a motion to remand this action (if indeed Travelers had been provided with a copy of the Complaint on or before August 18) or a statement that any such nonjurisdictional defect in the removal process has been waived;