Pettitt v. The Boeing Co, 09-3204.

Citation606 F.3d 340
Decision Date17 May 2010
Docket NumberNo. 09-3204.,09-3204.
PartiesJane Wynne PETTITT and Elizabeth Wynne Davies, Co-Executrixes of the Estate of Sarah Wynne Stewart, deceased, et al., Plaintiffs-Appellees,v.The BOEING CO., a corporation, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Orla M. Brady, Kreindler & Kreindler, New York, NY, Todd A. Smith, Power, Rogers & Smith, Chicago, IL, for Plaintiffs-Appellees.

William T. Cahill, Perkins Coie, Craig A. Knot (argued), Sidley Austin, David J. Adams, Hall, Prangle & Schoonveld, Austin W. Bartlett, Adler, Murphy & McQuillen LLP, Linda J. Schneider, Merlo, Kanofsky & Gregg, Ann P. Goodman, Patrick M. Graber, McCullough, Campbell & Lane LLP, Chicago, IL, for Defendants-Appellants.

Before CUDAHY and KANNE, Circuit Judges, and DARRAH, District Judge. 1

CUDAHY, Circuit Judge.

The present case arises out of a tragic accident that occurred on May 5, 2007, when in the early morning hours a Boeing 737-800 aircraft crashed shortly after take-off in Cameroon. All 114 people on board died. Two years later, six wrongful-death and survival actions were filed in Cook County Circuit Court, but were promptly removed to the United States District Court for the Northern District of Illinois on June 19, 2009. Removal was effected under the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), which, subject to certain conditions, grants district courts original jurisdiction over civil actions arising from a single accident involving at least 75 fatalities, where minimal diversity exists among the adverse parties. 28 U.S.C. § 1369. Three of the six cases removed under the MMTJA were voluntarily dismissed. The three remaining actions were assigned to the Hon. Samuel Der-Yeghiayan,2 the Hon. Milton I. Shadur 3 and the Hon. Wayne R. Andersen.4

A primary purpose of the MMTJA was to consolidate multiple cases arising out of a single disaster. See H.R.Rep. No. 106-276, at 200 (2002) (Conf. Rep.); Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir.2006); Case v. ANPAC La. Ins. Co., 466 F.Supp.2d 781, 794 (E.D.La.2006); Passa v. Derderian, 308 F.Supp.2d 43, 53 (D.R.I.2004). Consistent with that purpose, defendant, The Boeing Company, filed a motion for reassignment and consolidation on July 6, 2009, in the present case under Local Rule 40.4 of the Northern District of Illinois. That rule enables a defendant to file such a motion with the judge before whom the lowest-numbered case of the claimed related set of cases is pending. On July 8, 2009, the plaintiffs consented to Boeing's pending motion for consolidation and reassignment. Unfortunately, the district court did not rule on that motion.

Instead, on August 20, 2009, approximately two months after removal, Judge Der-Yeghiayan sua sponte remanded the case to the Circuit Court of Cook County. He reasoned that the “record does not reflect that all the defendants consented in a timely fashion for the removal before the case was removed to Federal Court.” Relying on Northern Illinois Gas Co. v. Airco Indus. Gases, A Division of Airco, Inc., 676 F.2d 270, 272 (7th Cir.1982), the district court concluded that the removal to federal court had been defective, since [a]ll defendants must join in a removal petition in order to effect removal.” As a corollary, all pending motions were “stricken as moot.” The defendants appeal this order, which the plaintiffs have chosen not to defend. Since the district court did not have the power to enter such an order, we vacate it. Before we explain the basis for this decision, however, we must address the question of jurisdiction.

A casual reading of Section 1447(d) might suggest that we lack jurisdiction to consider the district court's order. This provision states that an “order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis added). In the present case, the district court remanded under Section 1447(c) and not Section 1443. However, we have previously explained that appellate review is possible where the district court's remand “falls outside the authority of § 1447(c).” In re Continental Cas., Co., 29 F.3d 292, 294 (7th Cir.1994). We can “decide whether a district court has the power to do what it did, although we cannot examine whether a particular exercise of power was proper.” Id. Thus, the 28 U.S.C. § 1447(d) prohibition on appellate-court review of remand orders does not apply to remand orders that were outside the district court's statutory power under 28 U.S.C. § 1447(c).

In the present case, the district court lacked statutory power to enter a remand order. Even if the district court were correct that a defect in removal had occurred, this is merely a procedural defect.Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 455 (7th Cir.2005); McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir.1998). Such defects are waived if a party does not bring a timely motion to remand the case to state court. 28 U.S.C. § 1447(c) (requiring that a motion to remand “be made within 30 days after the filing of the notice of removal under section 1446(a)). We have previously held that “after the 30 days have expired a district judge may not remand on its own motion for non-jurisdictional problems.” Continental Cas. Co., 29 F.3d at 295. In the present case, no party filed a motion within 30 days. As a result, even if the “defect in the removal process could have justified a remand ... because 30 days passed without protest-and the problem does not imperil subject-matter jurisdiction-the case is in federal court to stay.” Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.2003); see also In re Continental Cas. Co., 29 F.3d at 294-95; Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 198-200 (4th Cir.2008); Whole Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317, 1318-21 (11th Cir.2001); Page v. City of Southfield, 45 F.3d 128, 132-34 (6th Cir.1995); Maniar v. FDIC, 979 F.2d 782, 785-86 (9th Cir.1992); FDIC v. Loyd, 955 F.2d 316, 321-22 (5th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 63-65 (3d Cir.1989). Since any procedural defect was waived, the district court lacked power to remand the case on that basis.

Although the validity of the removal is not relevant for jurisdictional reasons to our disposition of the present appeal, it bears noting that no procedural defects were in fact present. It is indeed true that valid removal generally requires the unanimous consent of all defendants. See Wolf v. Kennelly, 574 F.3d 406, 409-10 (7th Cir.2009). This general rule follows from the language of 28 U.S.C. § 1441(a), which provides that [e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. (emphasis added). We have interpreted the italicized language to mean that all defendants must consent to removal. See Doe, 347 F.3d at 657. However, the present case was not removed under 28 U.S.C. § 1441(a); it was removed under the MMTJA (28 U.S.C. § 1369). Section 1441(e)(1) provides that a defendant ... may remove ... if the action could have been brought ... under section 1369.” (emphasis added).

In summation, we have jurisdiction to consider whether the district court had power to order remand and we conclude that it did not. We also observe that the district court was in fact mistaken in believing that there was a defect in removal.

This leaves us with just one more difficulty. At oral argument, counsel instructed us on the disarrayed nature of the underlying proceedings, given that three different lawsuits based on the same accident and purportedly involving the same legal issues are being litigated in front of three different judges. To complicate matters further, the case presently before Judge Andersen has been stayed pending the outcome of the current appeal, while Judge Shadur has denied the defendants' request for a stay. Counsel advised us at oral argument that we could ameliorate the situation on remand by consolidating the three actions. He suggested that our Circuit Rule 36 might enable us to do so, though he conceded that he was unable to point to any precedent that supports his contention.

Our search of prior case law has been no more fruitful, though we would be hesitant to order consolidation regardless, since two of the three relevant cases are not now before us and we do not have the benefit of up-to-date briefing and argument from all affected parties on the...

To continue reading

Request your trial
29 cases
  • Townsquare Media Inc. v. Brill
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 21, 2011
    ...must consent for removal to be effective. Hanrick v. Hanrick, 153 U.S. 192, 196, 14 S.Ct. 835, 38 L.Ed. 685 (1894); Pettitt v. Boeing Co., 606 F.3d 340, 343 (7th Cir.2010). That would not be a problem in this case; Regent indicated its consent shortly after removal, and no objection to its ......
  • Benson v. Unilever United States, Inc.
    • United States
    • U.S. District Court — Southern District of Illinois
    • August 1, 2012
    ...removal requires the consent of all defendants, Townsquare Media, Inc. v. Brill, 652 F.3d 767, 770 (7th Cir.2011); Pettitt v. Boeing Co., 606 F.3d 340, 343 (7th Cir.2010); Chi., Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), unless they were not......
  • Wilder Chiropractic Inc. v. Pizza Hut of Southern Wis. Inc., 10–cv–229–bbc.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • December 6, 2010
    ...required by § 1446(b), but I need not resolve that question because defects in the removal procedure may be waived. Pettitt v. Boeing Co., 606 F.3d 340, 342–43 (7th Cir.2010).) At the preliminary pretrial conference on July 15, 2010, the magistrate judge set a schedule for the case, with a ......
  • Dennis v. Donohoe
    • United States
    • U.S. District Court — Northern District of Indiana
    • February 12, 2015
    ...for remand to state court, the Plaintiff has effectively waived any objection to the 30-day requirement. See Pettitt v. Boeing Co., 606 F.3d 340, 342-43 (7th Cir. 2010). ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT