Roe v. O'Donohue

Decision Date12 October 1994
Docket NumberNo. 94-1129,94-1129
Citation38 F.3d 298
PartiesRichard ROE, Plaintiff-Appellant, v. John O'DONOHUE, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Robert B. Patterson (argued), John Hedrich, Chicago, IL, for plaintiff-appellant.

Kelly Ann Giampa, William Rogers (argued), Bollinger, Ruberry & Garvey, Chicago, IL, for defendants-appellees.

Before POSNER, Chief Judge, EASTERBROOK, Circuit Judge, and GORDON, District Judge. *

EASTERBROOK, Circuit Judge.

During a splenectomy in 1984, "Richard Roe" received a transfusion of cryoprecipitate AHF, a blood product. He has since tested positive for the human immunodeficiency virus. Believing that he contracted the disease through the cryoprecipitate, he sought relief from three groups of persons: (a) the American National Red Cross and affiliates, which, together with an unrelated supplier (also a defendant), collected and distributed the cryoprecipitate; (b) the physician who recommended the splenectomy, the hospital where it was performed, and affiliated entities; and (c) the three physicians who performed the operation. He contended that the first group of defendants was negligent in collecting and distributing blood containing the virus, that the second was negligent in recommending the operation and failing to warn about the risks of using cryoprecipitate, and that the third was negligent in performing the operation.

Roe began the action in a state court, which granted his request for anonymity. Only groups (a) and (b) were among the original defendants; the three surgeons were named as "respondents in discovery," a category of non-defendants that under Illinois procedural rules may be added as parties if, within six months, the plaintiff obtains information sufficient to suggest that they may be liable. 735 ILCS 5/2-402. The Red Cross removed the case to federal court, representing that the other defendants "do not object to the removal of this action to federal court." The parties are not of diverse citizenship, but the Red Cross asserted that 36 U.S.C. Sec. 2, which permits it "to sue and be sued in courts of law and equity, State and Federal", entitled it to a federal forum. During the course of this litigation, the Supreme Court held that this statute creates a species of federal-question jurisdiction. American National Red Cross v. S.G., --- U.S. ----, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). A complaint stating a claim within the federal-question jurisdiction may be removed only in accord with the procedures laid out in 28 U.S.C. Sec. 1446, unless another statute dispenses with them. Some federal agencies have been granted special removal privileges, e.g., 12 U.S.C. Sec. 1441a(a)(11) (Resolution Trust Corporation), but the Red Cross did not argue that any such statute applies to it. The notice of removal cited Sec. 1446, and Roe promptly rejoined that the Red Cross had not complied with that law.

Section 1446(b) provides that the notice of removal must be filed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief". The deputy sheriff who served the complaint and summons at the Red Cross's headquarters in Philadelphia wrote that he left the papers with the receptionist on February 19, 1991. The employee of the Red Cross to whom the papers wended their way noted that he received them on February 22, 1991. The notice of removal was filed on March 25, 1991--timely if measured from the latter date but not if measured from the former. After reviewing affidavits and depositions, Judge Parsons concluded that the date of service was February 22 and denied Roe's motion to remand. Roe next asked the court to send the group (b) and (c) defendants back to state court. The district court denied this motion, concluding that the supplemental jurisdiction, 28 U.S.C. Sec. 1367, permitted federal adjudication of all claims against all defendants, and that the suit should not be split into two pieces. 800 F.Supp. 620 (1992). Later Judge Parsons denied a motion for reconsideration based on a second potential defect in removal procedure: the failure of the other defendants to join the Red Cross's notice of removal. The court concluded that Sec. 2 entitles the Red Cross to a federal forum notwithstanding its neglect of procedures that other litigants must follow. 815 F.Supp. 241 (1992). The court also dismissed all claims against the group (c) defendants. The arguments about removal had consumed more than six months, and the court held that it was now too late to recover from the surgeons. 815 F.Supp. 244 (1992).

At this point Roe dismissed all claims against the Red Cross and affiliates--removing the sole basis of federal jurisdiction--and moved yet again for remand. Judge Duff, to whom the suit had been transferred after Judge Parsons's death, swiftly remanded the case. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Roe soon realized that the remand may have doomed any effort to pursue the group (c) defendants: a remand en bloc is not appealable even with respect to claims that the district court previously resolved on the merits, see Perry R. Pennington Co. v. T.R. Miller Co., 994 F.2d 390 (7th Cir.1993), and it may have been hard to persuade the state court to revisit a subject already adjudicated by the federal court. So Roe asked Judge Duff to un-remand the claims against the three surgeons. This was possible because the Northern District of Illinois automatically delays remands to afford time for reconsideration. Judge Duff granted this motion while the record was still in federal court. The upshot is that all claims against the remaining group (a) and (b) defendants are proceeding in state court, and the claims against the group (c) defendants were terminated by final judgment in federal court. Roe's appeal brings up the entire case--the entire case remaining in the district court, that is--and therefore is within our appellate jurisdiction. His principal argument is that we should vacate the judgment concerning the group (c) defendants and reunite the litigation in state court.

The notice of removal stated that "[a]ll other defendants who have been served with summons in this action have stated that they do not object to the removal of this action to federal court." Under ordinary standards, this is deficient. A petition for removal fails unless all defendants join it. Hanrick v. Hanrick, 153 U.S. 192, 14 S.Ct. 835, 38 L.Ed. 685 (1894); Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528 (1892). To "join" a motion is to support it in writing, which the other defendants here did not. Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272-73 (7th Cir.1982); Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262 n. 11 (5th Cir.1988). A party may be able to establish that joinder is unnecessary--as it would be if, for example, the non-joining defendant were a nominal party or had not yet been served with process--but the Red Cross did not assert that any of the other defendants could be disregarded for this purpose. When opposing the motion to remand, the Red Cross contended that in light of 36 U.S.C. Sec. 2 it may remove without obtaining other defendants' consent. Only one court of appeals has addressed this question. Doe v. Kerwood, 969 F.2d 165 (5th Cir.1992), holds that Sec. 2 does not exempt the Red Cross from complying with the rules ordinarily applicable to removal. We are not disposed to create a conflict among the circuits on this bit of jurisdictional esoterica--especially not in light of Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), which applies the principle of Hanrick and Torrence, originally developed in diversity cases, to litigation in which one defendant seeks to remove under the federal-question jurisdiction.

Kerwood does not lead to a remand, however, because all parties must follow statutory procedures. Just as defendants who want to remove need to act promptly and obtain support from other parties, so plaintiffs who want to remand need to act promptly. "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. Sec. 1447(c). Proceedings to determine where the litigation will occur ought to be conducted with dispatch, so that the case may proceed to disposition on the merits. The short deadlines for removal and motions to remand expedite the identification of the proper tribunal. The Red Cross removed the case in March 1991, but not until September 1992 did Roe alert the district court to the lack of other defendants' joinder and seek remand on this basis. True, Roe moved for remand in April 1991, but he did not then urge this ground of decision. Filing a timely motion for remand cannot permit a party to store up grounds for future consideration--a tactic that may defeat, and here did defeat, any hope of swift determination. Barnes v. Westinghouse Electric Corp., 962 F.2d 513 (5th Cir.1992). By remaining silent altogether, a party accepts the federal forum--whether intentionally or by forfeiture does not matter. See In re Continental Casualty Co., 29 F.3d 292 (7th Cir.1994) (holding that a district judge may remand a removed case to state court, because of defects in removal procedure, only on motion by the parties). Similarly, the removal procedures are deemed adequate save to the extent they are challenged during the first 30 days.

We may assume that the 30-day period is subject to equitable tolling and estoppel, so that a defendant's misrepresentation may be challenged when the truth comes out. But the defect in the Red Cross's notice of removal was apparent on first reading: instead of representing that all defendan...

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