Alber v. Illinois Dept. of Mental Health, 90 C 6576.

Decision Date03 March 1992
Docket NumberNo. 90 C 6576.,90 C 6576.
Citation786 F. Supp. 1340
CourtU.S. District Court — Northern District of Illinois
PartiesLynne ALBER, Herman Alber, Amy Alber, Ron Alber, Cameron Alber and Joshua Alber, Plaintiffs, v. ILLINOIS DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, William Murphy, Glenn J. Grzonka, Reginald Richardson, Ralph Travis, Protection & Advocacy, Inc., Zena Naiditch, Michael Richardson, National Heritage, Inc., Charles A. Osborn, Jr., Herlinda Martinez Monaco, National Heritage Realty, Inc. and Mary Ann Guttman, Defendants.




Roger Derstine, Chicago, Ill., for Alber, et al., plaintiffs.

Richard F. Linden, Asst. Atty. Gen., Chicago, Ill., for Department defendants.

J. Kent Mathewson, Gerald L. Maatman, Jr., Maureen McGinnis, Baker & McKenzie, Chicago, Ill., for P & A defendants.

Nicholas Lynn, Daniel R. Gregus, William A. Buzogany, Kristopher S. Heston, Holleb & Coff, Chicago, Ill., for NHI defendants and NHRI defendants.


SHADUR, District Judge.

This case raises challenging questions about the rights of a non-biological "family" to claim rights of family association under the United States Constitution. After this Court assumed responsibility for the case by random reassignment last November upon the retirement of its former colleague Honorable Nicholas Bua, its examination of the court file revealed four fully-briefed motions to dismiss. For the reasons stated in this memorandum opinion and order:

1. the motion of defendants Protection & Advocacy, Inc. and Michael Richardson is granted in part and denied in part;
2. the motion of defendant Zena Naiditch is granted in part and denied in part;
3. the motion of defendants National Heritage, Inc. and Charles Osborn, Jr. is granted; and
4. the motion of defendant National Heritage Realty, Inc. is granted in part and denied in part.


This action began on June 29, 1990 when Lynne Alber, Herman Alber, Amy Alber, Ron Alber, Cameron Alber and Joshua Alber (collectively "Albers," while each is referred to individually by his or her first name) sued a variety of defendants in the Circuit Court of Cook County, Illinois. Albers claimed that various acts of the defendants violated their federal constitutional rights as protected by 42 U.S.C. § 1983 ("Section 1983"). They also asserted many violations of state law.

On November 1, 1990 defendants removed the case to this District Court pursuant to 28 U.S.C. § 1441(b),1 which permits the removal of "any civil case of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution...." Original district court jurisdiction existed because by definition a Section 1983 claim invokes a constitutional "claim or right." Removal of the state-law claims as well was permissible under the doctrine of pendent jurisdiction because those claims arose out of a "common nucleus of operative fact" (United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)), judicial economy is promoted by a single resolution of all the claims, and there appears to be no possibility of prejudice to any party from the exercise of federal jurisdiction over the state claims.2

Yet on November 28, 1990 Judge Bua remanded the case to state court via a minute order that did not explain the legal basis for the remand. This District Court's records do not reflect that a certified copy of the remand order was ever sent to the state court. On December 19 defendants filed a petition in the Court of Appeals seeking a writ of mandamus that would vacate Judge Bua's order. On January 2, 1991 (before the Court of Appeals had acted) Judge Bua issued a new minute order in which he vacated his first order and reasserted jurisdiction over the case. Consequently the Court of Appeals later dismissed the petition for mandamus as moot.

Judge Bua's second order represented a legal rarity — a district judge sua sponte reasserting jurisdiction over a case that in theory had departed to another court. Given this Court's independent obligation to ensure that federal jurisdiction is proper regardless of the route by which a case reaches its calendar, that second order bears brief scrutiny and discussion.

Orders of remand issued pursuant to Section 1447(c) are not reviewable or appealable, while orders of remand that purport to rest on some other legal basis — and that are hence wholly lacking in authority — may in fact be reviewed or appealed (Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346-52, 96 S.Ct. 584, 590-94, 46 L.Ed.2d 542 (1976)). In his second order Judge Bua explained that he had issued the first order because state courts have concurrent jurisdiction over Section 1983 cases, a ground not specified as a basis for remand in Section 1447(c). Citing Thermtron, Judge Bua therefore deemed his first order as open to correction.

In cases where the remand order has relied on Section 1447(c), the district judge lacks any power whatever over a case once the remand order has been entered and a certified copy has been sent to the state court (City of Valparaiso v. Iron Workers Local Union No. 395, 118 F.R.D. 466, 468 (N.D.Ind.1987) cites a wealth of case law and treatise discussion confirming that total loss of jurisdiction). Once that copy is sent, there literally is no case left in the federal court—and thus any order that the district judge might enter in the case, even an order seeking to vacate the remand order, must be a nullity.3

It might be thought that same rule would apply to remand orders that do not rely on Section 1447(c) — after all, a case that's gone is gone, no matter what legal grounds the judge cites when showing it to the courthouse door — but our Court of Appeals has held otherwise. When a case is sought to be remanded on grounds not cited in Section 1447(c), so that appellate review is available to begin with, such appellate jurisdiction exists whether or not the certified copy has been sent to the state court because "the district court clearly intended its remand order to be a final disposition of the case" (J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267, 271 (7th Cir.1990)).

So far as the potential for appellate consideration is concerned, then, a case purportedly remanded on grounds outside Section 1447(c) has not left the federal courthouse until the appellate process has run its course. Although the corollary proposition of retained district court jurisdiction does not necessarily follow,4 it seems appropriate to hold that so long as the case thus remains in the courthouse and nothing has caused the District Court to be ousted of jurisdiction in favor of the Court of Appeals,5 the district judge retains the power to reconsider his or her own order of remand — indeed, in the case of a timely motion for reconsideration, has the obligation to decide the issue (In re Shell Oil Co., 631 F.2d 1156, 1158 (5th Cir.1980) (per curiam)). Thus even if the clerk had sent a certified copy of Judge Bua's first order to the state court, his second order would have been proper. Jurisdiction exists here.


In March 1991 Albers filed a five-count Amended Complaint ("AC" or "Complaint," citations to which will take the form "¶ —") before Judge Bua, alleging that defendants had violated their rights under the United States Constitution, Illinois statutes and Illinois common law by twice removing Ron and Cameron from the Alber home without consent and then confining them in institutions that provided legally inadequate care instead. Albers have named 13 defendants in all, divided here for convenience into four groups:

1. Illinois Department of Mental Health and Developmental Disabilities, its director William Murphy and its employees Glenn Grzonka, Reginald Richardson and Ralph Travis (collectively "Department Defendants" and individually "Department," "Murphy," "Grzonka," "Reginald Richardson"6 and "Travis") are named in a variety of counts. Murphy is named in Counts III, IV and V in his official capacity only (¶ 18). Grzonka is also named in those three counts, in both his individual and official capacities (¶ 19). Reginald Richardson is named in Counts III and IV, in both his individual and official capacities (¶ 20). Travis is named in Count IV, in his individual and official capacities (¶ 21). Department Defendants have filed a joint Answer and an accompanying statement of affirmative defenses, but no motions to dismiss.
2. Protection & Advocacy, Inc., its director Zena Naiditch and its employee Michael Richardson (collectively "P & A Defendants" and individually "P & A," "Naiditch" and "Michael Richardson") are named in Counts I through IV. P & A is sued in its official and corporate capacity (¶ 22), while Naiditch and Michael Richardson are sued in their individual and official capacities (¶¶ 23-24). P & A and Michael Richardson have filed a joint Answer as well as a motion to dismiss Counts I through IV for failure to state a claim. Naiditch has filed only a motion to dismiss, also applicable to Counts I through IV.
3. National Heritage, Inc. ("NHI"), its former chairman Charles A. Osborn, Jr. ("Osborn") and its alleged employee Herlinda Martinez Monaco ("Martinez Monaco") are named in Count II. NHI is sued in its corporate capacity (¶ 25). Osborn is sued in his official and individual capacities (¶ 26). Martinez Monaco is sued in her individual capacity (¶ 27). NHI and Osborn have filed a motion to dismiss Count II, the only count in which they are named. Martinez Monaco has filed nothing at all.
4. National Heritage Realty, Inc. ("NHRI") and its employee Mary Ann Guttmann ("Guttmann") were added to Count II by the Amended Complaint.7 NHRI is sued in its corporate capacity (¶ 27) and Guttmann in her individual capacity (¶ 30). NHRI has filed a motion to dismiss Count

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