The significance of this procedural hair splitting, although
neither party addresses it directly, is that in most circumstances,
the Seventh Circuit does not allow third party defendants to remove
actions under § 1441(c). See Thomas v. Shelton, 740 F.2d 478, 487-
88 (7th Cir. 1984); see also 14C Wright, Miller & Cooper: Federal
Practice & Procedure § 3724, at 40-51 (1998). The Fund argues that
it is just a regular defendant, joined by the plaintiff under 735
ILCS 5/2-405, and I agree. Here the claim against the Fund was
filed by the plaintiff, not by Summers, so it cannot be a cross
complaint, see supra, and the plaintiff is the insured under the
Fund, not Summers, so it cannot be in the nature of a third party
complaint. Therefore the Fund is entitled to proceed under §
1441 (c).

Removal under § 1441(c) requires (1) that the claims against
the Fund would be removable if they had been brought alone--that
is, that I have original jurisdiction--and (2) that those claims
are separate and independent from all non-removable claims. See
Illinois Psychiatric Hosp. Co., Inc. v. Cook, No. 92 C 6373, 1992
WL 386053, at *3 (N.D. Ill. Dec. 1, 1992) (Marovich, J.) (citing
Lemke v. St. Margaret Hosp., 552 F. Supp. 833, 840 (N.D. Ill.
1982)). The first requirement is easily satisfied. The plaintiffs
are beneficiaries of the Fund, and they sued the Fund to adjudicate
their right to future benefits under a subrogation provision of the

Fund's plan. Aithough the complaint does not specifically invoke


Copies have been mailed to:

David W. Earnest

Gerald M. Sachs & Assoc.

One N. LaSalle Street, #1525
Chicago, IL 60602

Attorney for Plaintiffs

Angela R. Karras
Swanson, Martin & Bell
One IBM Plaza, #2900
Chicago, IL 60611

David J. Cahill

Swanton, Martin & Bell

2100 Manchester Road, #1420-C
Wheaton, IL 60187

Robert B. Greenberg

Asher, Gittler, Greenfield,
Cohen & D’Alba

125 S. Wacker Drive, #1100
Chicago, IL 60606

Attorneys for Defendants


automobile accident, and the claim against the Fund is essentially
= contract action to construe the plaintiffs’ rights to benefits
under the Fund’s plan. In a similar case, another court in this
Gistrict has held that a claim for payment of benefits under an
ERISA plan, involving the validity of a subrogation clause, was
separate and independent from a state claim for personal injuries
against the driver of the car that caused the accident. See Scianna
v. Furlong, 56 F. Supp. 2d 1000, 1004-05 (N.D. Ill. 1999) (Moran,
S.J.). The court distinguished Speciale v-. Seybold, 147 F.3d 612
(7th Cir. 1998) (holding that state law petition to apportion
settlement fund from personal injury claim between ERISA fund and
beneficiaries was preempted by ERISA), on the grounds that, in
Speciale, the ERISA plan’s right to subrogation was not challenged,
no payment was sought from the plan, and the only issue was the
proper apportionment of funds from the settlement of the state
claim. 56 F. Supp. 2d at 1004. This case is on all fours with
Scianna. The claim against the Fund, challenging the validity of
the subrogation provision, does not arise out of the same set of
facts as the automobile accident and does not depend on a finding
of liability against Summers. Cf. Thomas, 740 F.2d at 486
(Indemnity claim is not separate and independent from underlying
tort claim because indemnity claim will be moot if tort defendant
is not liable).

There is one remaining question, however: whether the
plaintiffs’ claims against Summers are in fact “otherwise non-

6


ERISA, 29 U.S.C. § 1001 et seg., on its face, the claim “arises
under” ERISA for the purposes of removal on the basis of a federal
question if: (1) the plaintiff is eligible to bring a claim under
§ 1132(a); (2) the “plaintiff’s cause of action falls within the
scope of an ERISA provision that the plaintiff can enforce via §
[1132] (a)”; and (3) the “plaintiff’s state law claim cannot be
resolved without an interpretation of the contract governed by
federal law.” Jass v. Prudential Health Care Plan, Inc., 88 F.3d
1482, 1487 (7th Cir. 1996). All of those factors are present here,
so the claim is one over which I have original jurisdiction.

Summers argues that removal of the ERISA claim is improper
because it arises under § 1132(a)(1)(B), over which state and
federal courts have concurrent jurisdiction, see 29 U.S.c. §
1132 (e) (1), and that I must have exclusive jurisdiction for removal
to be proper. Exclusive jurisdiction is not a prerequisite to
removal; under § 1441(c), I may properly retain jurisdiction over
separate and independent claims that are within the jurisdiction
conferred by § 1331, and § 1331 confers original jurisdiction over
all actions “arising under” federal law. That standard is
satisfied here.

As for the second requirement, a claim is not “separate and
independent” if it “arises from the same loss or actionable wrong”
as a nonremovable claim. Lewis v. Louisville & Nashville R.R. Co.,
758 F.2d 219, 221 (7th Cir. 1985). Here the plaintiffs’ action

against Summers is for personal injuries arising out of an

5


made whole~-should be as well off as if the opponent had respected
his legal rights in the first place.’ Improper removal prolongs
litigation (and jacks up fees).” Wisconsin v. Hotline Indus., Inc.,
236 F.3d 363, 367 (7th Cir. 2000).

However, because I lack jurisdiction over the claims against
Summers, the Fund properly proceeded under § 1441(c), and the
removal was not improper. Here the remand of the state claims is an
exercise of my discretion rather than the result of a procedural or
jurisdictional defect in the removal. Section 1447(c) does not say
whether fees are available for partial remands under § 1441(c), and
I can find no case awarding fees in that situation. In light of the
Seventh Circuit’s construction of § 1447(c) as a remedy for an
improper removal, see Hotline Indus., 236 F.3d 363 at 367, I
conclude that fees are not appropriate when I exercise my
discretion to remand the claims.

IIl.

I Grant Summers’ motion to remand the separate and independent

state law claims against him to the Circuit Court of Will County,

Illinois. I deny his request for fees under § 1441(c)

ENTER ORDER: y)
Pre vA Burkle

Elaine E. Bucklo
United States District Judge

Dated: January 3 + 2002


| Minute Os9g Form (0897) *

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 01 C 6898 DATE 1/23/2002
CASE Bolden, et al. Vs. Summers
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) Go Trial[set for/re-set for] on
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4@n) (General Rule21 CI FRCP41(a)(1) O FRCP41(a)(2).
do if [Other docket entry} Frank Summers’ motion to remand (3-1) is granted. Accordingly, the separate
and independent state law claims against him are remanded to the Circuit Court of Will County, Illinois.
His request for fees under section 1441 (c) is denied. Status hearing set for 2/15/02 at 10:00 a.m. Parties
shall submit their proposed discovery schedule by 2/12/02. Any motion for summary judgment must be
filed within 14 days after the deadline for the close of discovery. Any extension of discovery will not extend
the deadline for the filing of any motion for summary judgment. Enter Memorandum Opinion and Order.
dl) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document:
. . 4 Number.
No notices required. swutaber of notices . ‘
Y | Notices mailed by judge's staff. N 2 4 2002
Notified counsel by telephone. oA tne docket’
Docketing to mail notices. CM
Mail AO 450 form. docketing deputy initials
Copy to judge/magistrate judge.
1/23/2002
courtroom J Ai Spieneted nes
MPy deputy’s id €2 HYP 20 ies
initials —
Datert! ij?
DasidGadrebsiia fy 37) csi py it
pees



removable” for the purposes of § 1441(c). The complaint against
Summers does not on its face reveal any basis for diversity
jurisdiction under 42 U.S.C. § 1332: it does not identify the
citizenship of the parties, and the ad damnum clause seeks only “an
amount in excess of” $50,000. Nor is there supplemental
jurisdiction because, as I have already determined, the factual and
legal basis of the claims are different from the ERISA claim and do
not satisfy the “same case or controversy” requirement of 42 U.S.C.
§ 1367.

Because the claims against Summers are non-removable, §
1441(c) is an appropriate basis for removal of the entire case.
The parties agree that state law predominates in the claims against
Summers, and the Fund does not object to Summers’ alternative
request that I retain the ERISA claim against the Fund and remand
the state claim against Summers. I have made my own determination
that the state law claims against Summers were non-removable, so I
grant the motion to remand those separate and independent claims to
state court.

II.

Summers requests fees and costs in connection with this
motion. Section 1447(c) provides that “[a]n order remanding the
case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal.” No
showing of bad faith is required; § 1447(c) is a fee-shifting

statute, and the rationale behind it “‘is that the victor should be


removal is defective for the purposes of § 1441(a). However,
consent of all defendants is not required for removal under §
1441 (c). Thomas v. Shelton, 740 F.2d 478, 483 (7th Cir. 1984); see
also Speciale v. Seybold, 147 F.3d 612, 616 n.4 (7th Cir. 1998). In
cases where there are separate and independent claims within the
federal question jurisdiction of federal courts that have been
joined in state court with “one or more otherwise non-removable
claims,” § 1441(c) permits a defendant to remove the entire case,
and I may retain jurisdiction over the entire case or remand the
matters in which state law predominates.

As an initial matter, Summers refers to the Fund as a “third-
party defendant” and to the plaintiffs’ “third-party complaint”
against the Fund. Actually, the plaintiffs called the pleading a
‘cross complaint,” but neither designation is technically correct.
A cross~action is a claim by a defendant against the plaintiff or
against a co-defendant. Black’s Law Dictionary 375 (6th ed. 1990);
see also 735 ILCS 5/2-607(a) (defining a counterclaim by defendant
against plaintiff as a species of cross claim). A third party
action is one that brings in a party that has not been sued by the
plaintiff, but might be liable to the defendant for all or part of
the plaintiff’s claim against the defendant. Black’s at 1479; see
also 735 ILCS 5/2-406 (authorizing defendants or the court to bring

in third party defendants).


Summers and the Fund as defendants, and both the original complaint
and the “cross complaint” against the Fund were attached. The
plaintiffs have filed no objection to the removal. Summers moves to
remand the entire case back to the Illinois courts, or, in the
alternative, to remand only the state claims against him.

I.

The Fund’s notice of removal alleges that removal is proper
under 28 U.S.C. §§ 1441(a) and (c). Section 1441(a) allows for
removal of any civil action brought in state court over which the
federal courts have original jurisdiction. A notice of removal is
facially defective if it is not joined by all defendants or fails
to explain why all defendants have not consented. Shaw v. Dow
Brands, Inc., 994 F.2d 364, 368 (7th Cir. 1993). Ordinarily, any
objection to removal must be filed within 30 days after the notice
of removal was filed. § 1447(c). Summers’ motion to remand was
originally filed on September 25, 2001, within the thirty day
period, but I denied it on September 27 because it was not properly
noticed. Although there were still several days remaining until
the expiration of the thirty-day period, Summers did not refile the
motion until October 12, 2001. However, the Fund does not argue
that Summers’ objections to removal were untimely, so it has waived
any objection on that basis.

Because the Fund’s notice of removal was not joined by

Summers, and does not say whether Summers consented, the notice of


parker

02
IN THE UNITED STATES DISTRICT COURT JAN 2 420

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT BOLDEN, DEBRA BOLDEN,
Individually and as parents of
ERIC BOLDEN, a minor,

Plaintiffs,

FRANK SUMMERS,

)
)
)
)
)
)
)
)
)
)
Defendant.

No. 01 C 6898

ROBERT BOLDEN, DEBRA BOLDEN,
Individually and as parents of
ERIC BOLDEN, a minor,

Plaintiffs,
v.

ROOFERS’ UNION WELFARE TRUST
FUND,

Defendant.
MEMORANDUM OPINION AND ORDER

Robert and Debra Bolden sued Frank Summers individually and on
behalf of their minor son Eric in Iliinois state court for injuries
arising out of an automobile accident. Summers moved in state court
to enforce the terms of an alleged settlement agreement with the
plaintiffs. The plaintiffs then filed a “cross complaint for
declaratory judgment” in state court, under the same case number,
against Roofers’ Unions Welfare Trust Fund (“the Fund”). The Fund
removed the case to federal court based on a federal question on

September 5, 2001; the caption on the notice of removal listed both

19D