Lang v. American Elec. Power Co., Inc., Civ. No. S 91-443.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: ALLEN SHARP
• Citation: 785 F. Supp. 1331
• Parties: Walter LANG, Plaintiff, v. AMERICAN ELECTRIC POWER COMPANY, INC.; American Electric Power Service Corp.; Indiana Michigan Power Co.; the City of Mishawaka, Indiana; Mishawaka Municipal Electric Utilities; Mishawaka Board of Public Works & Safety; the Mishawaka Common Council; American Line Builders Apprenticeship Training Program; the L E Myers Co.; Miller Construction Co., Inc.; T & F Construction Corp., of Indiana; American Line Builders Chapter, National Electrical Contractors Assoc., Inc., Defendants.
• Docket Number: Civ. No. S 91-443.
• Decision Date: 27 February 1992

785 F. Supp. 1331

Walter LANG, Plaintiff,
v.
AMERICAN ELECTRIC POWER COMPANY, INC.; American Electric Power Service Corp.; Indiana Michigan Power Co.; the City of Mishawaka, Indiana; Mishawaka Municipal Electric Utilities; Mishawaka Board of Public Works & Safety; the Mishawaka Common Council; American Line Builders Apprenticeship Training Program; the L E Myers Co.; Miller Construction Co., Inc.; T & F Construction Corp., of Indiana; American Line Builders Chapter, National Electrical Contractors Assoc., Inc., Defendants.

Civ. No. S 91-443.

United States District Court, N.D. Indiana, South Bend Division.

February 27, 1992.

785 F. Supp. 1332

Richard J. LaSalvia, South Bend, Ind., for plaintiff.

Carmen M. Piasecki, Thomas H. Singer, Edward N. Kalamaros, Patrick J. Hinkle, William N. Farabaugh, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

The plaintiff, Walter Lang, objects to the notice of removal filed by the defendant, National Electrical Contractors Association ("NECA"), and moves for remand. The court has been fully briefed on the issues presented and held an oral hearing on the matter on January 24, 1992. Now, for the reasons stated below this court grants the plaintiff's motion to remand.

I.

The relevant facts can be briefly summarized. On August 8, 1991, the plaintiff, Walter Lang, filed his complaint for personal injury in the St. Joseph Superior Court, St. Joseph County, Indiana. Defendant, NECA, received service of Lang's original complaint on August 12, 1991. Lang filed an amended complaint in St. Joseph Superior Court on September 10, 1991. The following day, September 11, 1991, NECA filed its notice of removal in this court pursuant to 28 U.S.C. § 1441¹ invoking original federal jurisdiction under 29 U.S.C. § 185.² No other defendants were joined in NECA's removal petition. NECA was dismissed by stipulation from this case with prejudice on November 15, 1991.

Thus, the plaintiff asserts that the defendant, NECA, failed to join all defendants in its notice of removal pursuant to § 1441(a), and the 30 day time limit to do so has passed. Therefore, the plaintiff argues that the case should be remanded to the St. Joseph Superior Court pursuant to 28 U.S.C. § 1447(c).

II.

Removal Jurisdiction

The initial inquiry when deciding whether a case is removable from a state court to a federal district court is whether the original claim could have been brought in such federal court. If not, the matter is not removable. Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 183 (7th Cir.1984). Thus, if Lang's original claim could not have been brought in federal court, this matter was not removable. Whether it could have been brought in federal court depends "on the (truthful) allegations of the complaint

785 F. Supp. 1333

rather than on an issue that might be— even one that certainly would be—injected later by the answer or some other subsequent pleading." Id., at 183 citing Gully v. National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936)

Therefore, this court looks first to the plaintiff's amended complaint. In Count XI of that complaint, the plaintiff alleges that NECA violated Department of Labor regulations and federal safety regulations. Thus the claim against NECA could originally have been brought in federal court.

Next, the court addresses whether the procedures for removal were carried out properly. NECA brought its removal pursuant to § 1441(c), which provides:

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331³ 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 may sic remand all matters in which State law predominates.

28 U.S.C. § 1441(c).

"As a general rule, all defendants must join in a removal petition in order to effect removal." Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir.1982) citing Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900). Furthermore, "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." Northern Illinois Gas Co., 676 F.2d at 273. As an exception to the general rule the Seventh Circuit has written that "nominal parties ... are disregarded for removal purposes and need not join in the petition." Id., at 272. This circuit's Court of Appeals further limited the general rule in Bernstein when it wrote that consent of other defendants is required under § 1441(a), "but not for removal under 28 U.S.C. § 1441(c) ... that is, not if the plaintiff's claim against the removing defendant is `separate and independent' from the other claims in the suit." Bernstein, 738 F.2d at 183. Even so, "where the suit involves multiple defendants and one or more of the defendants does not join in the petition, better practice dictates that the petition expressly indicate why, e.g., that he is a nominal party...." Northern Illinois Gas Co., 676 F.2d at 273.

In this case, no other defendants were joined and NECA did not explain in its petition why no others joined. However, given the two exceptions noted above: (1) if the other defendants are "nominal parties" or (2) if Lang's claim against NECA was "separate and independent" from claims against the other defendants and the other claims were "non-removable," then removal without joining the other defendants would still be acceptable. The court will address each of these exceptions as they relate here.

First, the allegations made in the complaint against NECA are also made against American Line Builders Chapter National Electrical Contractors Association, Inc., the L E Myers, Co., Miller Construction Co., Inc., and T & F Construction Corp., of Indiana. Thus, none of these defendants can be considered nominal parties in relation to NECA.

Second, "where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and...