1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

BELVA DAVIS, Individually

and as PersonalRepresentative of the Estateof Daniel R. Green, Deceased,

Plaintiff-Appellant,

v.

WILLIAM JOSEPH MCCOURT,

Defendant,

INTERSTATE ARMS,INCORPORATED,

Defendant/Third-Party 

Plaintiff-Appellee,

CHINA NORTH INDUSTRIESCORPORATION (NORINCO),

Third-Party

Defendant-Appellee.

Appeal from the United St

for the Eastern District of M

No. 98-72583—John Feike
2 Davis v. McCourt, et al. No. 98-2188

*

The Honorable Thomas B. Russell, United States District Judge for

the Western District of Kentucky, sitting by designation.

Argued: October 29, 1999 

Decided and Filed: May 31, 2000

Before: SUHRHEINRICH and SILER, Circuit Judges;

RUSSELL, District Judge.*

_________________

COUNSEL

ARGUED: 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 Davis

appeals 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 known

No. 98-2188 Dav

trigger. This is precisely the owhich, according to its fuexpected. . . . In short, it perfdesign. Only a defective person obvious dangers associated witloaded firearm must be considerinstrument of death. That is its only deliberative action will cproperly handled, the gun can b

Id. quoting Taylor v. Gerry’s Rid

987, 991 (Ill.App.Ct. 1986). Althodid not know the gun was loaded, tgun safety course teaches and any rknow that no gun, loaded or unloadat another human, much less poinAccordingly, Michigan law does nto design safety features to protect a simple tool when the dangers are the product’s utility.” Treadway, 

Furthermore, the defendant’s act

cause of Green’s death. Since Mcand fired the rifle at Green, his acause of Green’s death. See 

Therefore, because there were no fact in dispute and there was nPlaintiff’s claims, the district cousummary judgment in favor of Int

CONCLUS

AFFIRMED.
10 Davis v. McCourt, et al. No. 98-2188

In this case, the parties do not dispute any genuine issue of

material 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.JA at 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 the

No. 98-2188 Davdangers. Since Plaintiff failed to pcontrary and failed to present any ewas caused by anything other than of McCourt, the district court graDefendant argues that the court jurisdiction and in granting summ

BACKGRO

In August 1994, sixteen-year-o

friend Jimmy Ortiz stopped by Joso that Ortiz could use the bathrallowed Ortiz to enter the house ainstructed Green to wait outside fwas inside, McCourt retrieved semiautomatic rifle, removed the mout the shells. McCourt then reinoutside to Green and pointed the rihim.” JA at 147. McCourt had firehow it worked. He understood tbullet . . . out by releasing the mchamber.” JA at 151. Although 

checked to make sure a bullet was the gun discharged a bullet, strikikilling him. McCourt’s rifle was indicator, nor was there any type of a bullet may still be lodged in the magazine clip had been removed. of involuntary manslaughter the fo

In 1996, Green’s estate filed 

Interstate, and NORINCO in CircuMichigan. Plaintiff alleges that were liable for designing a defectito warn McCourt that a bullet mchamber even after the magazine clremoved the case to District Cou§ 1441(d). Plaintiff and NORINNORINCO as a defendant without subsequently remanded back to 
4 Davis v. McCourt, et al. No. 98-2188

County. 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.

JURISDICTION AND REMOVAL

Removal jurisdiction is a question of law. This Court

reviews motions to remand de novo. See Michigan Affiliated

Healthcare Sys., Inc. v. CC Systems Corp. of Michigan, 139

F.3d 546, 549 (6th Cir. 1998).

Appellant argues that the district court erred in holding that

28 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 not

No. 98-2188 Davher position, he or she must presetrier of fact could find for the Anderson v. Liberty Lobby, 477 U2505, 91 L.Ed.2d 202 (1986)).

In order to establish a prima 

liability action, a plaintiff must demmanufacturer owed the plaintiff a dColt Indus., Inc., 757 F.Supp. 819, Glittenberg v. Doughboy RecreaN.W.2d 348 (Mich. 1990). Whquestion of law to be decided by Michigan law, a manufacturer oweopen and obvious danger associateproduct. See id.; Fisher v. Johnson 161 (Mich. 1970).

Michigan caselaw does not 

determining the simplicity or comRaines, 757 F.Supp. at 824. MichCircuit have, however, both contribstatus of the simple tool doctrine courts have categorized products aof the following conditions exist:

(1) The products are not hig

allowing the users to maproducts;

(2) the intended use of the pro

users in obviously dangerou

Id. at 825. Courts have found, foknives, gas stoves, axes, buzz airplanes, trampolines, and guns differ from complex products in and/or design. See id.; Treadway 950 F.Supp. 1326 (E.D.Mich. 199by a loaded gun have also been fouSee id.
8 Davis v. McCourt, et al. No. 98-2188

the 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 JUDGMENT

This Court reviews a district court’s grant of summary

judgment 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), citing

Qualicare-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 presents

a 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 or

No. 98-2188 Dav

1The Sixth Circuit has recognized th

right of removal to the federal courts § 1441(d). In re Delta America Re Ins. C1990).challenge NORINCO’s status as foreign state. 

The FSIA gives federal courts 

against foreign parties.1 Congress create a uniform body of law by estthe preferred forum for cases invoH.R. No. 94-1487, 94th Cong., 2d U.S.Code Cong. & Admin.News 6Disaster Near Roselawn, Indiana, 1996). The FSIA includes Title 2provides in relevant part:

Any civil action brought in a Statstate as defined in section 1603removed by the foreign state to United States for the district and place where such action is pendaction shall be tried by the court Four circuits have addressed the 

§ 1441(d) allows a foreign third-paaction from state court to district cDisaster Near Roselawn, Indian1996); In re Surinam Airways Ho(11th Cir. 1992); Chuidian v. Philip1095 (9th Cir. 1990); Nolan v. B(5th Cir. 1990). In each case, the that § 1441(d) not only authorizes involving a foreign third-party dauthorizes “the removal of the ennonforeign defendants.” Alonzi v

F.3d 331, 333 (7th Cir. 1995); s1098; Surinam, 974 F.2d at 1260; The Sixth Circuit has not directly a
6 Davis v. McCourt, et al. No. 98-2188

2“Any civil action brought in a State Court against a foreign state as

defined by Section 1603(a) of this title 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), citing Arango v.Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5thCir. 1980).

Plaintiff urges this Court to break from the other circuits

and 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 departs

from the traditional well-pleaded complaint rule as itspecifically allows for removal by a foreign state rather thanby the allegation of a plaintiff’s complaint.2 The 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-party

No. 98-2188 Dav

3The voluntary-involuntary rule 

voluntary actions of a plaintiff, rather thcontrol.” Hollenbeck v. Burroughs C(E.D.Mich. 1987).

4Plaintiff notes that 1441(d) contain

the well-pleaded complaint rule.defendant, there is no right of remPlaintiff asserts, would violate thrule and allow removal of an actioact3 of the plaintiff.4

Both the statutory interpretati

history behind the FSIA lead this circuits in holding that 28 U.Sauthorizes the removal of an action party defendant, but also that it autentire case, even if there are According to the Revision Note oaction” have replaced the words “the like in accordance with Federa81(c). See Nolan, 919 F.2d at 10states, “[t]here shall be one form oaction.’” Accordingly, the woencompass an entire civil case iplaintiffs and claims filed by thiSurinam, 974 F.2d at 1260. 

The purpose and legislative hist

the position that a foreign third-pathe entire case to district court unFSIA seeks to provide uniformity sovereigns and to remove any locaat a jury trial in a state court. See Delta 900 F.2d at 893; H.R. No. Sess. 32, reprinted in 1976 U.S.Co6604, 6631. Since foreign third-pathe same types of prejudices as forthat 1441(d) authorizes the remova