Killian v. Union LP Gas System, Inc.

• Decision Date: 05 August 1983
• Docket Number: Civ. A. No. 83-3445-CV-S-2.
• Citation: 568 F. Supp. 679
• Parties: Robert KILLIAN and Betty Killian, and Robert Killian and Joseph Killian, d/b/a Queen City Car Wash, Cross-Claim Plaintiffs, v. UNION L.P. GAS SYSTEM, INC., a corporation, Cross-Claim Defendant.
• Court: U.S. District Court — Western District of Missouri

568 F. Supp. 679

Robert KILLIAN and Betty Killian, and Robert Killian and Joseph Killian, d/b/a Queen City Car Wash, Cross-Claim Plaintiffs, v. UNION L.P. GAS SYSTEM, INC., a corporation, Cross-Claim Defendant.

Civ. A. No. 83-3445-CV-S-2.

United States District Court, W.D. Missouri, S.D.

August 5, 1983.

Charles C. Shafer, Jr., Kansas City, Mo., Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Springfield, Mo., for cross-claim plaintiffs.

Lynn Myers, Daniel, Clampett, Rittershouse, Dalton, Powell & Cunningham, Springfield, Mo., for cross-claim defendant.

MEMORANDUM IN SUPPORT OF ORDER GRANTING MOTION TO REMAND

COLLINSON, Senior District Judge.

The above-styled action is a crossclaim in a pending state court action which the crossclaim defendant sought to remove pursuant to the provisions of 28 U.S.C. § 1441(c).

The relevant portion of this statute states as follows:

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable 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 not otherwise within its original jurisdiction.

The crossclaim plaintiffs filed a motion to remand this action to state court on the basis that the crossclaim defendant's attempt to remove only the crossclaim rather than the entire case pending in state court is not permitted under the statute. The Court believes the plain language of the statute supports this view and the commentators agree. See, e.g., 1A Moore's Federal Practice, ¶ 0.1634.-8 (2d ed. 1983). In addition, other courts that have addressed this issue have likewise concluded that piecemeal removal of actions is not contemplated by the statute. See Port of New York Authority v. Eastern Airlines, Inc., 259 F.Supp. 142 (E.D.N.Y.1966); Morschauser v. American News Co., 158 F.Supp. 517 (S.D.N.Y.1958). Therefore, even under Section 1441(c)'s theory of removal, when a complaint states multiple causes of action which are separate and independent, the entire cause must be removed and the question of retaining any cause of action not within the Court's original jurisdiction or remanding such cause of action to state court is a matter to be decided by the district court in its discretion.

In opposing the motion to remand, the crossclaim defendant has cited no case permitting only a portion of a pending action to be removed. Rather, the Court's attention is directed to cases which permit the removal of an entire case by a third-party defendant or a crossclaim defendant or the removal of a severed third-party claim when such cross-claim or third-party claim qualifies as a separate and independent claim under the removal statute. The crossclaim defendant strongly argues that the crossclaim in this action meets this test. However, even this basis for removal of an entire case is a minority view.

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