The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge
This action's brief prior history in this federal court (under the
rubric of Case No. 01 C 116) comprised only a serve and volley: First
American National Red Cross ("Red Cross") sought to remove the case to
this District Court from its place of origin in the Circuit Court of Cook
County, and then this Court responded immediately with its January 8,
2001 memorandum order ("Order") that remanded the case for lack of
subject matter jurisdiction. Now Red Cross has sought to return the
volley by a renewed removal effort, but its attempted return is out of
court (both figuratively and literally).
There is no need to repeat what this Court said in its Order directing
remand — instead familiarity with the Order will be assumed. What
Red Cross now seeks to do is to load onto its successful appeal in
American National Red Cross v. S.G. (hereafter cited "S.G."), 505 U.S. 247
(1992), a case that dealt with a materially different scenario, more
baggage than the majority opinion in S.G. will carry. Although Red Cross'
effort is moderately ingenious, it simply does not survive analysis.
The better view, consistent with the principle that
removal jurisdiction is to be strictly construed, is
that third-party claims are not removable, because only
a party defending against claims asserted by a
plaintiff ought to be able to remove. If the original
defendant had no right to remove, or chose not to, an
ancillary defendant should not be permitted to remove,
absent express statutory authority.
And having pointed to that phrase, Red Cross then attempts to call to its
aid some caselaw that confirms the removability of state court lawsuits
by certain third-party defendants: Resolution Trust Corporation ("RTC")
and foreign states.
But that attempt does not withstand examination, because Red Cross'
position is substantively different from that of RTC or a foreign state in
a material (that is, outcome-determinative) way. In that respect it is
critical to note that 36 U.S.C. § 300105(a)(5), the portion of the
congressional enactment incorporating Red Cross that deals with its power
to engage in litigation, says only this:
(a) The corporation may —
(5) sue and be sued in courts of law and equity,
State or Federal, within the jurisdiction of the
United States. . . .
And S.G. addressed only the question whether that
enactment alone was enough to confer original
jurisdiction on the federal courts — a question
that was answered in the affirmative by five Members of
the Court and negatively by the four dissenting
But what Red Cross glosses over here (or, more
accurately, prefers to ignore entirely) is that in S.G.
Red Cross specifically looked to the general removal
statute, 28 U.S.C. § 1441,*fn1 as the sole
predicate for bringing the case from the state court
where it had been filed into the federal court (see 505
U.S. at 249). And of course the reason that Red Cross
had to do so was that not a word in the Title 36
enactment that gives legal life to Red Cross speaks
directly to the subject of removal: Instead the
potential for Red Cross' removal of any state court
lawsuit into the federal system is a consequence flowing
from the fact that the S.G. majority found that all
litigation in which Red Cross is involved is "federal
question" litigation (and is hence within the purview of
Section 1331). Because the authority of federal courts
to hear cases derives solely from Congress, and because
the quoted "sue and be sued" provision is totally silent
the subject of removal, it is necessary to look
elsewhere for the source of federal judicial power in
the removal context — and as S.G. itself
demonstrates (for, it does not discuss the subject in
any other respect), "elsewhere" has to be Section
1441(a), which grants "the defendant or the defendants"
the right of removal of "any civil action brought in a
State court of which the district courts of the United
States have original jurisdiction."*fn2
That line of analysis, as well as what it teaches for
the present case, contrasts sharply (and decisively)
with what is presented by each of the examples to which
Red Cross' counsel has sought to point as purported
parallels. Unlike the silence of 36 U.S.C. § 300105(a)
— and of any other portion of Title 36 — on
the subject of removal by Red Cross, Congress has
expressly conferred on both RTC and all foreign states
— in so many words — the universal right to
remove any actions to which they are made parties
(12 U.S.C. § 1441a(l)(1) as to RTC, and Section
1441(d) as to foreign states). Again, nothing in the
"sue and be sued" provision that was addressed in S.G.
and that was there held to be a fount of federal
jurisdiction for actions in which Red Cross was a
defendant says anything of the sort.
Indeed, Moore's § 107.11[b] — in a
portion that has not been quoted by Red Cross —
Further, special removal statutes (see § 107.15) may
provide an independent basis for a third-party