Honorable John W. Darrah, United States District Judge 1

for the Northern District of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3204

JANE WYNNE PETTITT and

ELIZABETH WYNNE DAVIES, Co-Executrixes

of the Estate of SARAH WYNNE STEWART,

deceased, et al.,

Plaintiffs-Appellees,

v.

THE BOEING CO., a corporation, et al.,

Defendants-Appellants.

Appeal from the United States District Court

 for the Northern District of Illinois, Eastern Division.

No. 09 CV 03709—Samuel Der-Yeghiayan, Judge.

ARGUED MARCH 29, 2009—DECIDED MAY 17, 2010

Before CUDAHY and KANNE, Circuit Judges, and DARRAH,

District Judge.1
2 No. 09-3204

This is the case that is presently before us on appeal. 2

Claisse v. Boeing Co., No. 09 CV 3722. 3

Patricia v. Boeing Co., No. 09 CV 3728. 4

CUDAHY, Circuit Judge. The present case arises out of a

tragic accident that occurred on May 5, 2007, when in

the early morning hours a Boeing 737-800 aircraft crashed

shortly after take-off in Cameroon. All 114 people on

board died. Two years later, six wrongful-death and

survival actions were filed in Cook County Circuit Court,

but were promptly removed to the United States

District Court for the Northern District of Illinois on

June 19, 2009. Removal was effected under the

Multiparty, Multiforum Trial Jurisdiction Act (MMTJA),

which, subject to certain conditions, grants district

courts original jurisdiction over civil actions arising from

a single accident involving at least 75 fatalities, where

minimal diversity exists among the adverse parties. 28

U.S.C. § 1369. Three of the six cases removed under

the MMTJA were voluntarily dismissed. The three remaining actions were assigned to the Hon. Samuel DerYeghiayan, the Hon. Milton I. Shadur and the Hon. 2 3

Wayne R. Andersen.4

A primary purpose of the MMTJA was to consolidate

multiple cases arising out of a single disaster. See H.R.

Rep. No. 106-276, at 200 (2002) (Conf. Rep.); Wallace v. La.

Citizens Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir. 2006);

Case v. ANPAC La. Ins. Co., 466 F. Supp. 2d 781, 794 (E.D.

La. 2006); Passa v. Derderian, 308 F. Supp. 2d 43, 53 (D.R.I.

2004). Consistent with that purpose, defendant, The
No. 09-3204 3

Boeing Company, filed a motion for reassignment and

consolidation on July 6, 2009, in the present case under

Local Rule 40.4 of the Northern District of Illinois. That

rule enables a defendant to file such a motion with the

judge before whom the lowest-numbered case of the

claimed related set of cases is pending. On July 8, 2009,

the plaintiffs consented to Boeing’s pending motion for

consolidation and reassignment. Unfortunately, the

district court did not rule on that motion.

Instead, on August 20, 2009, approximately two

months after removal, Judge Der-Yeghiayan sua sponte

remanded the case to the Circuit Court of Cook County.

He reasoned that the “record does not reflect that all

the defendants consented in a timely fashion for the

removal before the case was removed to Federal Court.”

Relying on Northern Illinois Gas Co. v. Airco Indus. Gases, A

Division of Airco, Inc., 676 F.2d 270, 272 (7th Cir. 1982), the

district court concluded that the removal to federal

court had been defective, since “[a]ll defendants must

join in a removal petition in order to effect removal.” As

a corollary, all pending motions were “stricken as

moot.” The defendants appeal this order, which the

plaintiffs have chosen not to defend. Since the district

court did not have the power to enter such an order, we

vacate it. Before we explain the basis for this decision,

however, we must address the question of jurisdiction.

A casual reading of Section 1447(d) might suggest that

we lack jurisdiction to consider the district court’s order.

This provision states that an “order remanding a case

to the State court from which it was removed is not
4 No. 09-3204

reviewable on appeal or otherwise, except that an order

remanding a case to the State court from which it was

removed pursuant to section 1443 of this title shall be

reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d)

(emphasis added). In the present case, the district court

remanded under Section 1447(c) and not Section 1443.

However, we have previously explained that appellate

review is possible where the district court’s remand

“falls outside the authority of § 1447(c).” In re Continental

Cas., Co., 29 F.3d 292, 294 (7th Cir. 1994). We can “decide

whether a district court has the power to do what it

did, although we cannot examine whether a particular

exercise of power was proper.” Id. Thus, the 28 U.S.C.

§ 1447(d) prohibition on appellate-court review of

remand orders does not apply to remand orders that

were outside the district court’s statutory power under

28 U.S.C. § 1447(c).

In the present case, the district court lacked statutory

power to enter a remand order. Even if the district court

were correct that a defect in removal had occurred, this

is merely a procedural defect. Midlock v. Apple Vacations

West, Inc., 406 F.3d 453, 455 (7th Cir. 2005); McMahon v.

Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir. 1998).

Such defects are waived if a party does not bring a timely

motion to remand the case to state court. 28 U.S.C. §

1447(c) (requiring that a motion to remand “be made

within 30 days after the filing of the notice of removal

under section 1446(a)”). We have previously held that

“after the 30 days have expired a district judge may not

remand on its own motion for non-jurisdictional problems.” Continental Cas. Co., 29 F.3d at 295. In the present
No. 09-3204 5

case, no party filed a motion within 30 days. As a result,

even if the “defect in the removal process could have

justified a remand . . . because 30 days passed without

protest—and the problem does not imperil subject-matter

jurisdiction—the case is in federal court to stay.” Doe v.

GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003); see also In re

Continental Cas. Co., 29 F.3d at 294-95; Ellenburg v. Spartan

Motors Chassis, Inc., 519 F.3d 192, 198-200 (4th Cir. 2008);

Whole Health Chiropractic & Wellness, Inc. v. Humana Med.

Plan, Inc., 254 F.3d 1317, 1318-21 (11th Cir. 2001); Page v.

City of Southfield, 45 F.3d 128, 132-34 (6th Cir. 1995); Maniar

v. FDIC, 979 F.2d 782, 785-86 (9th Cir. 1992); FDIC v. Loyd,

955 F.2d 316, 321-22 (5th Cir. 1992); Air-Shields, Inc. v.

Fullam, 891 F.2d 63, 63-65 (3d Cir. 1989). Since any procedural defect was waived, the district court lacked power to

remand the case on that basis.

Although the validity of the removal is not relevant

for jurisdictional reasons to our disposition of the present

appeal, it bears noting that no procedural defects were

in fact present. It is indeed true that valid removal generally requires the unanimous consent of all defendants. See

Wolf v. Kennelly, 574 F.3d 406, 409-10 (7th Cir. 2009). This

general rule follows from the language of 28 U.S.C.

§ 1441(a), which provides that “[e]xcept as otherwise

expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of

the United States have original jurisdiction, may be

removed by the defendant or the defendants.” (emphasis

added). We have interpreted the italicized language

to mean that all defendants must consent to removal.

See Doe, 347 F.3d at 657. However, the present case was
6 No. 09-3204

not removed under 28 U.S.C. § 1441(a); it was removed

under the MMTJA (28 U.S.C. § 1369). Section 1441(e)(1)

provides that “a defendant . . . may remove . . . if the

action could have been brought . . . under section 1369.”

(emphasis added).

In summation, we have jurisdiction to consider whether

the district court had power to order remand and we

conclude that it did not. We also observe that the district

court was in fact mistaken in believing that there was

a defect in removal.

This leaves us with just one more difficulty. At oral

argument, counsel instructed us on the disarrayed

nature of the underlying proceedings, given that three

different lawsuits based on the same accident and purportedly involving the same legal issues are being

litigated in front of three different judges. To complicate

matters further, the case presently before Judge

Andersen has been stayed pending the outcome of

the current appeal, while Judge Shadur has denied the

defendants’ request for a stay. Counsel advised us at oral

argument that we could ameliorate the situation on

remand by consolidating the three actions. He suggested that our Circuit Rule 36 might enable us to do so,

though he conceded that he was unable to point to any

precedent that supports his contention.

Our search of prior case law has been no more fruitful,

though we would be hesitant to order consolidation

regardless, since two of the three relevant cases are not

now before us and we do not have the benefit of up-to-date

briefing and argument from all affected parties on the
No. 09-3204 7

Of course, a complicating fact is that Judge Shadur has already 5

entertained and denied a Rule 40.4 motion filed by the defendants, as the case pending before him became the lowestnumbered one by virtue of Judge Der-Yeghiayan’s improper

remand order. We do not know the basis for this determination,

as the docket entry merely indicates that the court denied the

motion for “reasons stated at oral argument.” However, it would

seem that Judge Shadur found the cases at least somewhat

related, since it ordered that discovery conducted in front of

Judge Andersen constitute discovery for the purpose of the

action pending before him. 

There may be concern that the doctrine of collateral estoppel

affects the pending Rule 40.4 motion before Judge DerYeghiayan, since Boeing had a full and fair opportunity to argue

just such a motion in another forum (before Judge Shadur). It

might be possible to litigate an issue for purposes of collateral

estoppel via a motion to consolidate. See, e.g., Burstein v. Rumball,

(continued...)

matter. But even if we were of the opinion that Rule 36

gave us the power to consolidate the three relevant

cases, we would see no reason to exercise that authority

here. The Northern District of Illinois has a mechanism

in place for dealing with such situations. On remand, the

present case will again be before Judge Der-Yeghiayan

and the Rule 40.4 motion filed by defendant, The Boeing

Co., on July 8, 2009, and consented to by the plaintiffs

two days later, will remain pending. On remand, Judge

Der-Yeghiayan should promptly address this motion

and, if necessary, consult with Judges Shadur and

Andersen to determine whether reassignment is appropriate.

5
8 No. 09-3204

(...continued) 5

297 Fed. App’x. 918, 920 (11th Cir. 2008). However, collateral

estoppel applies only to a court’s determination of fact that is

necessary to its judgment. See Harrell v. U.S. Postal Service, 445

F.3d 913, 921 (7th Cir. 2006). Judge Shadur’s discretionary ruling

not to grant a Rule 40.4 motion could have been founded on a

variety of determinations, many of which would have no

bearing on a subsequent motion to reassign before Judge DerYeghiayan. Cf. Jennings v. Roscrow, 1987 WL 11341, at * 3 (N.D.

Ill. May 22, 1987). 

5-17-10

For the foregoing reasons, the district court’s remand

order of August 20, 2009 is VACATED and the case is

remanded to the district court for proceedings consistent

with this opinion. The district court should endeavor

promptly to rule upon the pending Rule 40.4 motion to

consolidate and reassign, which was filed on July 6, 2009.

In considering the merits of this motion, we would encourage the district court to be mindful of the benefits of

consolidation envisioned in the MMTJA.