United States District Court, N.D. Illinois
March 16, 2004.
ORTHOPEDIC AND REHAB CENTER, P.C., Plaintiff,
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
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
Fund is a third party defendant in this action, having been targeted by
defendant Richard Giancola and not by plaintiff
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  [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)).