1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0181P (6th Cir.)File Name: 00a0181p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________BELVADAVIS, Individuallyand as PersonalRepresentative of the Estateof Daniel R. Green, Deceased,Plaintiff-Appellant,v.WILLIAMJOSEPHMCCOURT,Defendant,INTERSTATEARMS,INCORPORATED,Defendant/Third-PartyPlaintiff-Appellee,CHINANORTHINDUSTRIESCORPORATION(NORINCO),Third-PartyDefendant-Appellee.;>1No. 98-2188Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit.No. 98-72583—John Feikens, District Judge.2Davis v. McCourt, et al.No. 98-2188*The Honorable Thomas B. Russell, United States District Judge forthe Western District of Kentucky, sitting by designation.Argued: October 29, 1999Decided and Filed: May 31, 2000Before: SUHRHEINRICH and SILER, Circuit Judges;RUSSELL, District Judge.*_________________COUNSELARGUED:James D. Hubbert, BENNER & BILICKI,Farmington Hills, Michigan, for Appellant. William E. Clark,CLARK & KNIGHT, Southfield, Michigan, Michael H.Selter, FARKAS & MANELLI, Washington, D.C., forAppellees.ON BRIEF:Brian J. Benner, BENNER &BILICKI, Farmington Hills, Michigan, for Appellant.William E. Clark, CLARK & KNIGHT, Southfield,Michigan, Michael H. Selter, FARKAS & MANELLI,Washington, D.C., for Appellees._________________OPINION_________________RUSSELL, District Judge. Plaintiff-Appellant Belva Davisappeals from the district court’s grant of summary judgmentin favor of Defendant Interstate Arms Incorporated and ThirdParty Defendant China North Industries Corporation(NORINCO). The district court concluded that it had properjurisdiction under 28 U.S.C. § 1441(d) and granted bothInterstate’s and NORINCO’s motions for summary judgmentfinding that guns are simple tools and that the dangersassociated with guns are open and obvious. The courtconcluded that under Michigan law there is no duty on thepart of the manufacturer to warn or protect against any knownNo. 98-2188Davis v. McCourt, et al.11trigger. This is precisely the operation of the productwhich, according to its function, is reasonablyexpected. . . . In short, it performed according to itsdesign. Only a defective person would fail to realize theobvious dangers associated with these actions. . . . Aloaded firearm must be considered dangerous. . . . It is aninstrument of death. That is its primary function. Yet,only deliberative action will cause discharge. Whenproperly handled, the gun can be safely used.Id.quotingTaylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d987, 991 (Ill.App.Ct. 1986). Although Plaintiff argues that hedid not know the gun was loaded, that fact is irrelevant. Anygun safety course teaches and any reasonable gun user shouldknow that no gun, loaded or unloaded, should ever be pointedat another human, much less pointed and mockingly fired.Accordingly, Michigan law does not require a manufacturerto design safety features to protect users from the dangers ofa simple tool when the dangers are “obvious and inherent inthe product’s utility.”Treadway, 950 F.Supp. at 1332.Furthermore, the defendant’s actions must be the proximatecause of Green’s death. Since McCourt intentionally aimedand fired the rifle at Green, his actions were a supersedingcause of Green’s death.See Raines, F.Supp. at 826.Therefore, because there were no genuine issues of materialfact in dispute and there was no legal basis to supportPlaintiff’s claims, the district court did not err in grantingsummary judgment in favor of Interstate and NORINCO.CONCLUSIONAFFIRMED.10Davis v. McCourt, et al.No. 98-2188In this case, the parties do not dispute any genuine issue ofmaterial fact. Plaintiff submits that the defendants failed toprove that the gun used was a simple product. In support,Plaintiff contends that guns are highly mechanized because“[t]here’s several bits and pieces” which need to be cleaned.JAat 465. Plaintiff also points to the numerous hours armyand police men spend training with guns as evidence thatguns are not simple products.See id.Thus, Plaintiff submits,a gun is “not a simple tool that you just put on the shelf andyou take it out, and you fire it,” despite the fact that this isprecisely the factual scenario here.See id.Based on thisargument, Plaintiff asserts the defendants still had a duty towarn McCourt about the possibility that a bullet may havebeen left in the chamber after the magazine clip was removed,or provide a safety device such as a load indicator. Caselawholds the opposite.Caselaw provides that a gun is a simple product.The gun is not highly mechanized and is not powerdriven. It does not contain large, unwieldy parts thatmust be serviced and cause severe injury upon merecontact. Moreover, the normal and intended operation ofthe gun does not place the user in a dangerousposition–defendant intended that users fire the gun not atthemselves or innocent individuals, but at sportingtargets, animals, or in the event of self-defense, at otherhumans. Just as a manufacturer cannot produce ahammer that will not mash, or a stove that will not burn,it is also true that a manufacturer cannot produce a gunthat will not fire a bullet when it is, in fact, loaded andwhen the firing mechanism is deliberately engaged.Raines, 757 F.Supp. at 825. Caselaw also provides that a gunpresents an open and obvious danger to the suspecting user.[The user] fully intended to perform the physical actionsnecessary to fire the weapon. He deliberately picked itup, inserted his finger through the trigger guard, pointedit at the head of [the decedent] and pulled the trigger.The loaded revolver fired when [the shooter] pulled theNo. 98-2188Davis v. McCourt, et al.3dangers. Since Plaintiff failed to present any evidence to thecontrary and failed to present any evidence that Green’s deathwas caused by anything other than the deliberate, criminal actof McCourt, the district court granted summary judgment.Defendant argues that the court erred in finding it hadjurisdiction and in granting summary judgment.BACKGROUNDIn August 1994, sixteen-year-old Daniel Green and hisfriend Jimmy Ortiz stopped by Joseph McCourt’s residenceso that Ortiz could use the bathroom. McCourt, age 37,allowed Ortiz to enter the house and use the bathroom, butinstructed Green to wait outside for his friend. While Ortizwas inside, McCourt retrieved his loaded MAK-90semiautomatic rifle, removed the magazine clip and emptiedout the shells. McCourt then reinserted the clip and walkedoutside to Green and pointed the rifle at him, “trying to scarehim.”JAat 147. McCourt had fired the gun before and knewhow it worked. He understood that “[y]ou can’t take thebullet . . . out by releasing the magazine once it’s in thechamber.”JAat 151. Although McCourt claims to havechecked to make sure a bullet was not in the rifle’s chamber,the gun discharged a bullet, striking Green in the head andkilling him. McCourt’s rifle was not equipped with a loadindicator, nor was there any type of warning with the rifle thata bullet may still be lodged in the rifle’s chamber after themagazine clip had been removed. A jury convicted McCourtof involuntary manslaughter the following April.In 1996, Green’s estate filed suit against McCourt,Interstate, and NORINCO in Circuit Court in Wayne County,Michigan. Plaintiff alleges that Interstate and NORINCOwere liable for designing a defective product and for failingto warn McCourt that a bullet may still be in the rifle’schamber even after the magazine clip is removed. NORINCOremoved the case to District Court pursuant to 28 U.S.C.§ 1441(d). Plaintiff and NORINCO stipulated to dismissNORINCO as a defendant without prejudice and the case wassubsequently remanded back to Circuit Court in Wayne4Davis v. McCourt, et al.No. 98-2188County. Thereafter, Interstate filed a third-party complaintagainst NORINCO for contribution and indemnity.NORINCO removed the case to district court again and bothNORINCO and Interstate filed motions for summaryjudgment.The district court, relying on case law from other circuits,concluded that it had proper jurisdiction under 28 U.S.C.§ 1441(d). The district court also stated that guns are simpletools and that the dangers associated with guns are open andobvious. The court concluded that under Michigan law thereis no duty on the part of the manufacturer to warn or protectagainst any known dangers. Since Plaintiff failed to presentany evidence to the contrary and failed to present anyevidence that Green’s death was caused by anything otherthan the deliberate, criminal act of McCourt, the district courtgranted both Interstate’s and NORINCO’s motions forsummary judgment. This timely appeal followed.JURISDICTIONAND REMOVALRemoval jurisdiction is a question of law. This Courtreviews motions to remand de novo.See Michigan AffiliatedHealthcare Sys., Inc. v. CC Systems Corp. of Michigan, 139F.3d 546, 549 (6th Cir. 1998).Appellant argues that the district court erred in holding that28 U.S.C. § 1441(d) allows a foreign third-party defendant toremove an action from state court to district court and as aresult, erred in allowing removal in this case. This is an issueof first impression in this Court. We find that the districtcourt did not err and that 28 U.S.C. § 1441(d) allows a foreignthird-party defendant to remove an entire action from statecourt to district court.The Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C.§§ 1602-1611, defines a foreign state to include a politicalsubdivision of a foreign state or an agency or instrumentalityof a foreign state. 28 U.S.C. § 1603(a). NORINCO is a stateowned limited liability corporation under the law of thePeople’s Republic of China. On appeal, Plaintiff does notNo. 98-2188Davis v. McCourt, et al.9her position, he or she must present evidence on which thetrier of fact could find for the plaintiff.See id.(citingAnderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986)).In order to establish a prima facie case in a productsliability action, a plaintiff must demonstrate that the defendantmanufacturer owed the plaintiff a duty of care.See Raines v.Colt Indus., Inc., 757 F.Supp. 819, 823 (6th Cir. 1991), citingGlittenberg v. Doughboy Recreational Indus., Inc., 462N.W.2d 348 (Mich. 1990). Whether a duty exists is aquestion of law to be decided by the court.See id.UnderMichigan law, a manufacturer owes no to duty to warn of anopen and obvious danger associated with the use of a simpleproduct.Seeid.;Fisher v. Johnson Milk Co., 383 Mich. 158,161 (Mich. 1970).Michigan caselaw does not provide a clear test fordetermining the simplicity or complexity of a product.SeeRaines, 757 F.Supp. at 824. Michigan courts and the SixthCircuit have, however, both contributed caselaw to clarify thestatus of the simple tool doctrine under Michigan law. Thecourts have categorized products as simple when one or bothof the following conditions exist:(1) The products are not highly mechanized, thusallowing the users to maintain control over theproducts;(2) the intended use of the products does not place theusers in obviously dangerous positions.Id.at 825. Courts have found, for example, that hammers,knives, gas stoves, axes, buzz saws, propeller drivenairplanes, trampolines, and guns are simple products thatdiffer from complex products in their simplistic operationand/or design.See id.;Treadway v. Smith & Wesson Corp.,950 F.Supp. 1326 (E.D.Mich. 1996). The dangers presentedby a loaded gun have also been found to be open and obvious.See id.8Davis v. McCourt, et al.No. 98-2188the foreign party is brought in as a third-party defendant byanother defendant.See Surinam, 974 F.2d at 1259. “Makinga federal forum available to a foreign state furthers this goal,whether the foreign state is a defendant or a third-partydefendant.”Id.Based on the history and purpose of 28 U.S.C. § 1441(d),as well as the persuasive case law found in other circuits,foreign third-party defendants should be allowed to remove anentire case from state court to district court. Accordingly, thedistrict court here did not err in finding that it had jurisdictionpursuant to 28 U.S.C. § 1441(d).SUMMARY JUDGMENTThis Court reviews a district court’s grant of summaryjudgment de novo. Thus, this Court examines the record inthe same manner as the district court.See Estate of Mills v.Trizec Properties, 965 F.2d 113, 115 (6th Cir. 1992), citingQualicare-Walsh, Inc. v. Ward, 947 F.2d 823, 825 (6th Cir.1991).Summary Judgment is available under Fed.R.Civ.P. 56(c)if the moving party can establish that the “pleadings,depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law.” In determiningwhether summary judgment is appropriate, a court mustresolve all ambiguities and draw all reasonable inferencesagainst the moving party.See Matsushita Electrical Indus.Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,89 L.Ed.2d 538 (1986).“[N]ot every issue of fact or conflicting inference presentsa genuine issue of material fact.”Street v. Bradford & Co.,886 F.2d 1472, 1477 (6th Cir. 1989). The test is “whether theparty bearing the burden of proof has presented a juryquestion as to each element in the case.”Hartsel v. Keys,87F.3d 795, 799 (6th Cir. 1996). The plaintiff must presentmore than a mere scintilla of the evidence. To support his orNo. 98-2188Davis v. McCourt, et al.51The Sixth Circuit has recognized that FSIA provides an “absoluteright of removal to the federal courts by the foreign state” under§ 1441(d).In re Delta America Re Ins. Co., 900 F.2d 890, 892 (6th Cir.1990).challenge NORINCO’s status as an instrumentality of aforeign state.The FSIA gives federal courts jurisdiction over actionsagainst foreign parties.1Congress enacted the FSIA in part tocreate a uniform body of law by establishing federal courts asthe preferred forum for cases involving foreign states.SeeH.R. No. 94-1487, 94th Cong., 2d Sess. 32, reprinted in 1976U.S.Code Cong. & Admin.News 6604, 6631;In re Air CrashDisaster Near Roselawn, Indiana, 96 F.3d 932, 942 (7th Cir.1996). The FSIA includes Title 28 U.S.C. § 1441(d), whichprovides in relevant part:Any civil action brought in a State court against a foreignstate as defined in section 1603(a) of this title may beremoved by the foreign state to the district court of theUnited States for the district and division embracing theplace where such action is pending. Upon removal theaction shall be tried by the court without jury.Four circuits have addressed the issue of whether 28 U.S.C.§ 1441(d) allows a foreign third-party defendant to remove anaction from state court to district court.See In re Air CrashDisaster Near Roselawn, Indiana, 96 F.3d 932 (7th Cir.1996);In re Surinam Airways Holding Co., 974 F.2d 1255(11th Cir. 1992);Chuidian v. Philippine Nat’l Bank, 912 F.2d1095 (9th Cir. 1990);Nolan v. Boeing Co., 919 F.2d 1058(5th Cir. 1990). In each case, the circuit courts have agreedthat § 1441(d) not only authorizes the removal of an actioninvolving a foreign third-party defendant, but also that itauthorizes “the removal of the entire case, even if there arenonforeign defendants.”Alonzi v. Budget Constr. Co., 55F.3d 331, 333 (7th Cir. 1995);see Chuidian, 912 F.2d at1098;Surinam, 974 F.2d at 1260;Nolan, 919 F.2d at 1066.The Sixth Circuit has not directly addressed this issue, but in6Davis v. McCourt, et al.No. 98-21882“Any civil action brought in a State Court against a foreign state asdefined by Section 1603(a) of thistitle may be removed by the foreignstate to the district court of the United States for the district and divisionembracing the place where such action is pending.”dicta noted that if removal by a foreign defendant is properunder 1441(d), then “the entire action against all defendantsis removed to federal court.”In re Delta America Re Ins.,Co., 900 F.2d 890, 891 n.1 (6th Cir. 1990), citingArango v.Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5thCir. 1980).Plaintiff urges this Court to break from the other circuitsand adopt the position that 28 U.S.C. § 1441(d) does notpermit foreign parties who are brought in as third-partydefendants to remove the case to federal court. To reach thisholding, Plaintiff asserts that this Court should interpret 28U.S.C. § 1441(d) in light of the well-pleaded complaintdoctrine. The well-pleaded complaint doctrine provides that“federal jurisdiction exists only when a federal question ispresented on the face of the plaintiff’s properly pleadedcomplaint.”See Her Majesty the Queen v. City of Detroit,874 F.2d 332, 338 (6th Cir. 1989). Accordingly, Plaintiffasserts that only a voluntary act of the plaintiff can remove asuit.See Great Northern Ry Co. v. Alexander, 246 U.S. 276,282, 38 S.Ct. 237, 62 L.Ed 713 (1918). Since the plaintiffhere did not bring suit directly against NORINCO, Plaintiffargues that this case should be remanded to state court.Plaintiff notes that 28 U.S.C. § 1441(d) partially departsfrom the traditional well-pleaded complaint rule as itspecifically allows for removal by a foreign state rather thanby the allegation of a plaintiff’s complaint.2The Plaintiffargues that the control over the action remains with theplaintiff under his interpretation of § 1441(d), because theplaintiff chooses the defendants. Plaintiff argues that§ 1441(d) does not apply here, however, because the statutelimits itself to actions brought “against a foreign state.”According to Plaintiff’s analysis, because the plaintiff did notdirectly bring the case against the foreign third-partyNo. 98-2188Davis v. McCourt, et al.73The voluntary-involuntary rule “conditions removability onvoluntary actions of a plaintiff, rather than factors beyond a plaintiff’scontrol.”Hollenbeck v. Burroughs Corp., 664 F.Supp. 280, 281(E.D.Mich. 1987).4Plaintiff notes that 1441(d) contains no mention of an exception tothe well-pleaded complaint rule.defendant, there is no right of removal. Any other decision,Plaintiff asserts, would violate the well-pleaded complaintrule and allow removal of an action that was not a voluntaryact3of the plaintiff.4Both the statutory interpretation of “civil action” andhistory behind the FSIA lead this Court to follow the othercircuits in holding that 28 U.S.C. § 1441(d) not onlyauthorizes the removal of an action involving a foreign thirdparty defendant, but also that it authorizes the removal of theentire case, even if there are nonforeign defendants.According to the Revision Note of § 1441, the words “civilaction” have replaced the words “case,” “cause,” “suit,” andthe like in accordance with Federal Rules of Procedure 2 and81(c).See Nolan, 919 F.2d at 1066. Rule 2 unequivocallystates, “[t]here shall be one form of action known as a ‘civilaction.’” Accordingly, the words “civil action” mustencompass an entire civil case including claims filed byplaintiffs and claims filed by third-party defendants.SeeSurinam, 974 F.2d at 1260.The purpose and legislative history behind FSIA reinforcethe position that a foreign third-party defendant may removethe entire case to district court under 28 U.S.C. § 1441(d).FSIA seeks to provide uniformity in the treatment of foreignsovereigns and to remove any local bias that might be presentat a jury trial in a state court.See Nolan, 919 F.2d at 1065;Delta900 F.2d at 893; H.R. No. 94-1487, 94th Cong., 2dSess. 32, reprinted in 1976 U.S.Code Cong. & Admin. News6604, 6631. Since foreign third-party defendants would facethe same types of prejudices as foreign defendants, it followsthat 1441(d) authorizes the removal of the entire case, even if