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Futch v. AIG

June 15, 2007


The opinion of the court was delivered by: Murphy, Chief District Judge


This matter is before the Court on the motion for voluntary dismissal (Doc. 26) and the motion for remand to state court (Doc. 27) brought by Plaintiff Sandra Futch. For the following reasons, the motions are GRANTED.


This case is an action for wrongful death under Illinois law arising from the death of Hershel B. Sheffield, Sr., Futch's decedent, from mesothelioma, allegedly as a result of employment-related exposure to asbestos. The action was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois; however, on February 28, 2007, Futch's counsel obtained leave from the state court to join Defendant Tennessee Valley Authority ("TVA"), whereupon TVA removed the case to this Court in so-called "federal officer" jurisdiction. See 28 U.S.C. § 1442; Cohee v. McDade, 472 F. Supp. 2d 1082, 1083 (S.D. Ill. 2006); Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 843-44 (S.D. Ill. 2006). TVA is, of course, an agency of the United States and thus a federal officer for purposes of 28 U.S.C. § 1442, which authorizes removal to federal court of "[a] civil action . . . commenced in a State court against . . . [t]he United States or any agency thereof[.]" 28 U.S.C. § 1442(a)(1). See also 16 U.S.C. § 831r (denominating TVA as "an instrumentality and agency of the Government of the United States for the purpose of executing its constitutional powers[.]"); Williamson v. McKenzie-Cate Co., No. 1:05-CV-237, 2006 WL 543996, at *1 (E.D. Tenn. Mar. 6, 2006) (an action against TVA was properly removed in federal officer jurisdiction).*fn1 Futch does not contest TVA's right to remove this case and instead seeks voluntary dismissal of her claims against TVA. Additionally, Futch requests that, if the Court grants voluntary dismissal of her claims against TVA, which are the sole basis for the exercise of federal subject matter jurisdiction in this case, then the Court grant discretionary remand of her remaining claims in the case to state court. TVA does not oppose Futch's motion for voluntary dismissal. The Court considers each of Futch's requests in turn.


A. Voluntary Dismissal

The Court addresses first Futch's motion for voluntary dismissal of her claims against TVA. Futch's motion is brought pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Fed. R. Civ. P. 41(a)(2). Although Rule 41(a)(2) speaks of dismissal of "an action" rather than of dismissal of claims against a defendant in an action, in this Circuit "[d]ismissal of all claims against a particular defendant is . . . considered dismissal of an 'action' for purposes of Rule 41(a)." Remien v. EMC Corp., No. 04 C 3727, 2004 WL 2381876, at *1 n.1 (N.D. Ill. Oct. 19, 2004) (citing Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1233 (7th Cir. 1983)). See also Loutfy v. R.R. Donnelley & Sons, Co., 148 F.R.D. 599, 602 (N.D. Ill. 1993) ("Rule 41(a) was singularly designed to allow for voluntary dismissal of entire actions only and not for dismissal of one of several claims against a defendant."). Accord Woodburn Constr. Co. v. Encon Pac., LLC, No. C05-5811FDB, 2007 WL 655414, at *1 (W.D. Wash. Feb. 27, 2007) ("Rule 41 is reserved for circumstances in which the result of the alleged dismissal is that one or all of the defendants are released from the action.") (collecting cases); Dee-K Enters., Inc. v. Heveafil Sdn. Bhd., 177 F.R.D. 351, 355-56 (E.D. Va. 1998) (in a multi-defendant case, construing a motion to amend a complaint to dismiss all claims against one defendant as a request for voluntary dismissal of that defendant under Rule 41(a)); Plasterer v. Hahn, 103 F.R.D. 184, 185 (M.D. Pa. 1984) ("[W]hen, as here, a plaintiff wishes to dismiss his entire claim against one of several defendants, Rule 41(a)(2) properly applies.").

Having determined that Futch's request for voluntary dismissal is properly brought pursuant to Rule 41, the Court notes further that Futch cannot voluntarily dismiss her claims against TVA as of right under the rule. Pursuant to Rule 41(a)(1), a plaintiff may voluntarily dismiss claims as of right at any time before the filing of an answer or a motion for summary judgment. See Crook v. WMC Mortgage Corp., No. 06-cv-535-JPG, 2006 WL 2873439, at *1 (S.D. Ill. Oct. 5, 2006) (quoting Hare v. Abbott Labs., No. 97 C 2692, 1997 WL 223056, at *1 (N.D. Ill. Apr. 29, 1997) ("A plaintiff's right to voluntary dismissal by notice before the filing of an answer or a motion for summary judgment is 'absolute.'").*fn2 However, in this case TVA filed an answer to Futch's operative complaint on June 6, 2007, thus terminating Futch's absolute right to a voluntary dismissal of her claims against the agency. See Sheldon v. Amperex Elec. Corp., 52 F.R.D. 1, 9 (E.D.N.Y. 1971) (the filing of an answer by a defendant terminates a plaintiff's absolute right of voluntary dismissal as to that defendant, although not as to other defendants in a case who have not yet answered); Miller v. Stewart, 43 F.R.D. 409, 411-12 (E.D. Ill. 1967) (same); Terry v. Pearlman, 42 F.R.D. 335, 337 (D. Mass. 1967) (same). Thus, the Court must determine whether a grant of voluntary dismissal under Rule 41(a)(2) is proper in this instance.

In general, of course, a grant of voluntary dismissal under Rule 41(a)(2) is committed to a district court's sound discretion. See FDIC v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992); Stern v. Barnett, 452 F.2d 211, 213 (7th Cir. 1971); Cottrell v. Village of Wilmette, No. 92 C 8433, 1994 WL 63018, at *2 (N.D. Ill. Feb. 11, 1994). "[T]he very concept of discretion presupposes a zone of choice within which the trial court may go either way . . . in granting or denying voluntary dismissal." Buller v. Owner Operator Indep. Driver Risk Retention Group, Inc., 461 F. Supp. 2d 757, 768 (S.D. Ill. 2006) (quoting United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir. 1986)). "The district court abuses its discretion only when it can be established . . . that . . . the defendant will suffer 'plain legal prejudice' as the result of the district court's dismissal of the plaintiff's action." Id. at 767. "[F]actors to be considered in examining motions to dismiss may properly include 'the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.'" Tyco Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980) (quoting Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969)). "The enumeration of the factors to be considered . . . is not equivalent to a mandate that each and every factor be resolved in favor of the moving party before dismissal is appropriate. It is rather simply a guide for the trial judge, in whom the discretion ultimately rests." Id. See also Woodzicka v. Artifex Ltd., 25 F. Supp. 2d 930, 934 (E.D. Wis. 1998). The plaintiff has the burden of persuading the court that dismissal is warranted. See Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177-78 (7th Cir. 1994) ("Rule 41(a)(2) requires the plaintiff to persuade the district court and to establish that voluntary dismissal without prejudice is warranted . . . . Without such demonstration, an action shall not be dismissed at the request of a plaintiff.").

In this instance TVA does not claim that it will suffer plain legal prejudice if voluntary dismissal is granted as to Futch's claims against the agency and in fact TVA consents to voluntary dismissal of those claims. To the extent the interests of other Defendants in this case are relevant in evaluating the propriety of a grant of voluntary dismissal as to Futch's claims against TVA, the Court sees no likelihood that voluntary dismissal will cause them plain legal prejudice. While it is clear that Futch's purpose in seeking voluntary dismissal of her claims against TVA is to eliminate the sole basis for federal subject matter jurisdiction in this case and thus facilitate remand of her remaining claims to state court (an issue discussed in more detail in the next section of this order), the mere prospect of further litigation in a state forum has never been considered prejudice such as to warrant denial of a motion for voluntary dismissal. See Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 474-75 (7th Cir. 1988) (finding that a defendant who chose not to remove an identical state action to federal court would not be prejudiced by the voluntary dismissal of the federal action, which the plaintiff requested so that the suit could be pursued in state court); Stern, 452 F.2d at 213 ("In exercising its discretion the court follows the traditional principle that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit."); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Prods. Liab. Litig., 199 F.R.D. 304, 306 (S.D. Ind. 2001) (the fact that a plaintiff, if granted voluntary dismissal, intends to initiate "a second lawsuit on the same facts in state court does not constitute plain legal prejudice" such as to warrant denying voluntary dismissal). See also Quad/Graphics, Inc., 724 F.2d at 1233 ("[T]he prospect of a second lawsuit or the creation of a tactical advantage, is insufficient to justify denying the plaintiff's motion to dismiss.").

Legal prejudice may arise where dismissal would strip a defendant of a defense in potential litigation in an alternative forum. See, e.g., Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 177-80 (5th Cir. 1990) (a trial court abused its discretion in allowing the voluntary dismissal of a suit, since the defendant would lose the possible defense of forum non conveniens, a characteristic feature of maritime law, if the case were reinstated in a Louisiana state court); Dixon v. First Family Fin. Servs., 276 B.R. 173, 178 (Bankr. S.D. Miss. 2002) (plain legal prejudice exists when the dismissal of an action strips the defendant of a viable affirmative defense); Taylor v. Coca-Cola Co., No. CIV. A. 00-2488, 2001 WL 204725, at **7-8 (E.D. La. Feb. 28, 2001) (voluntary dismissal without prejudice is not proper where a defendant would be deprived of a statute of limitations defense if suit were refiled in an alternative forum). However, this is not such a case. Other than the fact that TVA is a party to the case, Futch's claims have no apparent basis in federal subject matter jurisdiction, and the 128 other Defendants named in her operative complaint will lose nothing if, by virtue of TVA's dismissal from the case, Futch's remaining claims are remanded to state court. From the point of view of those Defendants, the presence of this case in federal court is, to put it bluntly, a fluke caused by Futch's tactical misstep in joining TVA. It is well settled, of course, that the fact that a case can be removed to federal court does not vest in a defendant a right to a trial in federal court. See Grivas v. Parmelee Transp. Co., 207 F.2d 334, 337-38 (7th Cir. 1953) (removal of a case to federal court does not preclude a plaintiff from seeking voluntary dismissal in order to re-file his or her claims in state court). The Court in its discretion will grant Futch's request for voluntary dismissal of her claims against TVA.

B. Discretionary Remand

Having concluded that dismissal of Futch's claims against TVA is appropriate, the Court turns to Futch's request for remand of her remaining claims to state court. In Alsup the Court noted that "[r]emoval under 28 U.S.C. § 1442 represents an exception to the general rule that removal of an action based on an issue of federal law is governed by the claims asserted in a plaintiff's well-pleaded complaint." 435 F. Supp. 2d at 843-44. See also Kuntz v. Illinois Cent. R.R. Co., 469 F. Supp. 2d 586, 589-90 (S.D. Ill. 2007) (discussing the familiar principle that, in general, whether a case arises under federal law is determined by the claims asserted in a plaintiff's "well-pleaded complaint"). Specifically, "[a] defendant who is able to meet the requirements for removal under section 1442 'gain[s] access to federal court . . . even . . . where no federal question is presented by the plaintiff.'" Alsup, 435 F. Supp. 2d at 844 (quoting Ryan v. Dow Chem. Co., 781 F. Supp. 934, 939 (E.D.N.Y. 1992)). "Also, section 1442(a)(1) authorizes removal of an entire case, even though only one of its controversies might involve a federal officer or agency." Id. See also Lalonde v. Delta Field Erection, No. Civ.A.96-3244-B-M3, 1998 WL 34301466, at *2 n.4 (M.D. La. Aug. 6, 1998) ("If a particular claim is removable under Section 1442(a)(1), then the entire action becomes removable.").

As a leading treatise on federal jurisdiction explains, "[s]ince [28 U.S.C. §] 1442(a)(1) authorizes removal of the entire case, even though only one of its controversies might involve a federal officer or agency, the section creates a species of statutorily mandated ancillary subject matter jurisdiction over the claims outside its ambit." 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice & Procedure § 3727 (3d ed. 1998 & Supp. 2007). See also Parker v. Della Rocco, 197 F.R.D. 214, 216 (D. Conn. 2000) ("[I]n a case removed under 28 U.S.C. § 1442(a)(1), that statute . . . creates a species of ancillary jurisdiction over the nonfederal elements of the case."); Ewell v. Petro Processors of La., Inc., 655 F. Supp. 933, 936-37 (M.D. La. 1987) (in cases removed under Section 1442, a federal court's jurisdiction over claims asserted against defendants who are not federal officers is ancillary and discretionary). Thus, a district court "can exercise its discretion and decline jurisdiction over the ancillary claims once the federal agency has dropped out of the case . . . . Whether such ancillary claims must be remanded if the federal officer's 'anchor' claim is dismissed or settled depends on considerations of comity, federalism, judicial economy, and fairness to litigants." 14C Wright, Miller, Cooper & Steinman, Federal Practice & Procedure § 3727 (collecting cases). See also Macias v. Kerr-McGee Corp., No. 92-C-3389, 1993 WL 524734, at *1 (N.D. Ill. Dec. 14, 1993) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)) ("When considering a discretionary remand after the disposal of the [federal officer claims] upon which the case was originally removed, ...

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