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Gostich v. Rock Island Integrated Services

November 14, 2007

JOHN B. GOSTICH AND MARY LOU GOSTICH, PLAINTIFFS,
v.
ROCK ISLAND INTEGRATED SERVICES, DEFENDANT,
ROCK ISLAND INTEGRATED SERVICES, THIRD PARTY PLAINTIFF,
v.
UNITED STATES ARMY GARRISON - ROCK ISLAND ARSENAL AND SCHMIDT ASSOCIATES INC., THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Before the Court is Third Party Defendant United States Army Garrison -- Rock Island Arsenal's Motion to Dismiss Third Party Plaintiff Rock Island Integrated Service's Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and Plaintiffs John and Mary Lou Gostich's Motion to Remand. For the reasons set forth below, the Motion to Dismiss [#3] is GRANTED WITHOUT PREJUDICE, and the Motion to Remand [#6] is DENIED.

BACKGROUND

In February 2006, Plaintiffs John and Mary Gostich, residents of Ohio, brought this negligence action in the Circuit Court of the Fourteenth Judicial Circuit of Rock Island County, Illinois, against Defendant Rock Island Integrated Services (RIIS), a resident of Illinois. The Gostiches allege that John Gostich was injured when he fell through a hole in a catwalk located at the Rock Island Arsenal, and the Gostiches allege Mary Gostich suffered damages from the loss of her husband's consortium and household services. The Gostiches contend that RIIS contracted with the United States Army Garrison -- Rock Island Arsenal (RIA) to operate, inspect, repair, and maintain the catwalk from which John Gostich fell.

On October 11, 2006, RIIS filed a Notice of Removal to Federal Court based on diversity jurisdiction. On December 8, 2006, District Judge Joe Billy McDade granted the Gostiches' Motion to Remand and remanded the case to state court because the Notice of Removal was untimely. Gostich v. Rock Island Integrated Serv., No. 06-cv-4068 (C.D. Ill. Dec. 8, 2006).

On May 14, 2007, RIIS filed a Third Party Complaint for contribution against RIA and Schmidt Associates, Inc. (Schmidt), John Gostich's employer at the time of the incident. RIIS alleges that RIA failed to operate, inspect, repair, and maintain the catwalk from which John Gostich fell. RIIS seeks pro rata contribution from RIA for any damages awarded to the Gostiches pursuant to the Illinois Contribution Among Joint Tortfeasors Act.

After receiving notice of the Third Party Complaint on August 27, 2007, RIA, on September 14, 2007, filed a Notice of Removal pursuant to 28 U.S.C. § 1442(a)(1), asserting that RIA is an agency of the United States sued in its official capacity.

On September 25, 2007, RIA filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that under the derivative jurisdiction doctrine, the Court lacks subject matter jurisdiction because the state court lacked jurisdiction over a tort contribution claim filed against a federal agency. On October 12, 2007, the Gostiches filed a Motion to Remand contingent upon the dismissal of RIA from this action. The matter now is fully briefed, and this Order follows.

DISCUSSION

A. Motion to Dismiss

1. Removal

Any suit filed in a state court against the United States or any agency thereof is removable to federal district court. 28 U.S.C. § 1442(a)(1). When the United States or any agency thereof is named as a defendant, the entire case is removable even though only one of the controversies involves a federal agency. Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 844 (S.D. Ill. 2006); see also Lepucki v. Van Wormer, 765 F.2d 86, 89 (7th Cir. 1985) ("Moveover, where a defendant can properly remove one count in a complaint, he or she can remove the entire action, including pendent state law claims.").

RIA, an agency of the United States, removed the entire action after RIIS filed a claim against it for contribution. Therefore, the removal of this entire case was ...


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