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injury. The allegations directed against Cigna involve
substantially the same facts as do the allegations against the
other defendants. Some of Cigna’s alleged wrongs may be different
from the wrongs alleged against other defendants, but they derive
from the same facts. Therefore, Cigna has no right to removal
pursuant to § 1441(c), and because all of the defendants did not
join in the removal petition, this case must be remanded.
Accordingly, we need not reach plaintiffs’ additional arguments for
remand.
CONCLUSION

For the foregoing reasons, plaintiffs’ motion to remand this
case is granted. Cigna’s motion for summary judgment is therefore
moot. Pursuant to 28 U.S.C. § 1447(c), this action is remanded to
the Circuit Court of Cook County, Illinois. Furthermore, pursuant
to 28 U.S.C. § 1447(c), Cigna shall pay all attorney fees, costs
and disbursements incurred by plaintiffs by reason of the removal
proceedings. Plaintiffs are directed to submit appropriate
documentation of such fees and costs to the court within 14 days,
after which Cigna will have 14 days to respond.

DATE: August 29, 2001

ENTER:

John F./ Gfady, United States District Judg


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defendants’ consent because removal is proper pursuant to 28 U.S.C.
§ 1441(c). Section 1441(c) provides:

Whenever a separate and independent claim or cause of
action within the jurisdiction conferred by section 1331
of this title is joined with one or more otherwise non-
removable claims or causes of action, the entire case may
be removed and the district court may determine all
issues therein, or, in its discretion, may remand all
matters in which State law predominates.

28 U.S.C. § 1441(c).
The requirement that a claim be “separate and independent”
must be strictly applied and narrowly construed. See American Fire

& Cas. Co. v. Finn, 341 U.S. 6, 10 (1951); Lewis v. Louisville &

Nashville R.R., 758 F.2d 219, 221 (7th Cir. 1985). It is well-
settled that a claim is not “separate and independent” if it arises

from the same loss or actionable wrong. See Lewis, 758 F.2d at

221.

A distinct legal argument is not a separate claim. See Hickey
v. Duffy, 827 F.2d 234, 236 (7th Cir. 1987). Put another way,
“[Le]ven if more than a single wrong exists, claims are not
‘separate and independent’ if the wrongs arise from an interlocked

series of transactions, i.e., they substantially derive from the

same facts.” Lewis, 758 F.2d at 221.

Here, the claims against Cigna are not “separate and
independent” from the other claims asserted, as required for
removal under § 1441(c). Plaintiffs have alleged damages resulting

from a single incident—the treatment of Thomas Marros’s hand/wrist


|- Minute Ont@r Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judg! Sitting Judge if Othe
° or Magistrate Judge John F. Grady thaw Assigned Judge
CASE NUMBER 01 C 2297 DATE August 29, 2001
CASE Marros v. Naperville Family Physicians, Inc.
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stare briefly the
nature of the motion being presented.)

ab

MOTION:

DOCKET ENTRY: ’

(Ll) Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) a Ruling/Hearing on set for___at

(5) a Status hearing[held/continued to] [set for/re-set for] on__set for att

(6) a Pretrial conference{held/continued to} [set for/re-set for] on __set for _ at

(7) ia) Trial{set for/re-set for} on ____—at

(8) a [Bench/Jury trial] [Hearing] held/continued to___at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4¢m) General Rule21 0 FRCP41(a)(1) 0 FRCP41(a)(2).

go) off [Other docketentry] Plaintiffs’ motion to remand (ef-1) is granted. Cigna’s

motion for summary judgment [15-1] is moot. Pursuant to 28 U.S.C. § 1447{(c),
this action is remanded to the Circuit Court of Cook County, Illinois.
Furthermore, pursuant to 28 U.S.C. § 1447(c), Cigna shall pay all attorney
fees, costs and disbursements incurred by plaintiffs by reason of the removal
proceedings. Plaintiffs are directed to submit appropriate documentation of
such fees and costs to the court within 14 days, after which Cigna will have
14 days to respond. See attached for details. ENTER MEMORANDUM OPINION.

[For further detail see order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court. Document

Number

No notices required. .
number of notices

Notices MAILED by judge’s staff.

06.3.0,

Notified counsel by telephone. GN)

Docketing to mail notices.

Mail AO 450 form: adeketing deputy initials

Copy to CLAUS 29 PH 4 SI
date mailed notice
courtroom
KAM. deputy’s KAM
initials Date/time received in
ventral Clerk's Office mailing depuy ints

(Reserved for use by the Court)



01-2297,.011-JCD August 29, 2001

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

AUG 8 0 2001
THOMAS P. MARROS and CLARENCE

MARROS, natural father and next
friend of Thomas P. Marros,

Plaintiffs,

NAPERVILLE FAMILY PHYSICIANS, INC.,

)
)
)
)
)
)
Vv. ) No. O1 C 2297
)
)
an Illinois corporation, et al., )

)

)

Defendants.

MEMORANDUM OPINION
Before the court is plaintiffs’ motion to remand this case to
the Circuit Court of Cook County. For the reasons explained below,
the motion is granted.

BACKGROUND

In February 1995, plaintiff Thomas P. Marros sought treatment
from defendant Naperville Family Physicians for an injury to his
right hand and wrist. He was seen by defendant Donald M.
Rusthoven, M.D., and his x-rays were interpreted by defendant S.
Chandra Mouli, M.D. Plaintiff and his father and next friend,
Clarence Marros, filed a medical malpractice action in the Circuit
Court of Cook County against defendants for, among other things,
negligent treatment and the failure to diagnose a fracture.

Plaintiffs also sued Cigna Healthcare of Illinois, Inc. (“Cigna”)


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based on vicarious liability theories and violation of fiduciary
duty. Plaintiffs filed their original Complaint on November 12,
1997 and filed a Second Amended Complaint on March 13, 2001. On
April 3, 2001, Cigna filed a petition to remove the action to this
court. Thereafter, plaintiffs filed the instant motion to remand
the case to the Circuit Court of Cook County.

DISCUSSION

Plaintiffs assert several grounds for remand, the first being
that all defendants have not joined in the removal petition. In
order for an action to be properly removed from state court to
federal court, all defendants must consent to removal “within
thirty days after the receipt by the defendant .. . of the copy of
the initial pleading” or amended pleading containing the removable

claim. 28 U.S.C. § 1446(b); Northern Ill. Gas Co. v. Airco Indus.

Gases, 676 F.2d 270, 272 (7th Cir. 1982). A petition filed by less
than all of the named defendants is considered defective if it
fails to contain an explanation for the absence of co-defendants.

See id.; Shaw _v. Dow Brands, Inc., 994 F.2d 364, 368 (7th Cir

1993). If all defendants do not consent to removal within the
thirty-day period, the district court must remand the case. See 28
U.S.C. § 1447(c).

Cigna concedes that the other defendants did not join in its

removal petition, but argues that it need not obtain the other