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ORTHOPEDIC AND REHAB CENTER, P.C. v. GIANCOLA

United States District Court, N.D. Illinois


March 16, 2004.

ORTHOPEDIC AND REHAB CENTER, P.C., Plaintiff,
v.
RICHARD GIANCOLA, Defendant RICHARD GIANCOLA, Defendant Third Party Plaintiff, CHICAGO DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, Third Party Defendant

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

Chicago District Council of Carpenters Welfare Fund ("Fund") has filed what it labels a Notice of Removal, seeking to bring this action from the Circuit Court of Cook County, Illinois to this District Court. Because it is really an understatement to say that "it appears that the district court lacks subject matter jurisdiction" (28 U.S.C. § 1447 (c)),*fn1 this Court sua sponte remands this action to its place of origin.

Fund is a third party defendant in this action, having been targeted by defendant Richard Giancola and not by plaintiff Page 2 Orthopedic and Rehab Center, P.C. But Section 1446(a)(emphasis added) limits the power of removal to "[a] defendant or defendants desiring to remove any civil action," and our Court of Appeals has long been among the courts that adhere to what 16 Moore's Federal Practice § 107.11 [1] [b] at 107-31 (3d ed. 2002) refers to as the "better view, consistent with the principle that removal jurisdiction is to be strictly construed, . . . that third party claims are not removable, because only a party defendant defending against claims asserted by a plaintiff ought to be able to remove." On that score see the discussion of the issue in Thomas v. Shelton. 740 F.2d 478, 486-88 (7th Cir. 1984), which has been adhered to whenever our Court of Appeals has had the occasion to consider the matter since then.

  Because of that jurisdictional issue, both Section 1447(c) and Thomas. 740 F.2d at 488 mandate a remand of this action to the state court. This Court so orders. And because the issue is so plain, and because no reason appears why the action should not continue to be pursued expeditiously in the Circuit Court, the Clerk of this Court is ordered to mail the certified copy of the remand order forthwith (see this District Court's LR 81.2(b)).


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