Soper v. Kahn

• Decision Date: 22 July 1983
• Docket Number: Civ. A. No. M-83-1011.
• Citation: 568 F. Supp. 398
• Parties: Patricia Riley SOPER, et al., Plaintiffs, v. Burt M. KAHN, Esquire, et al., Defendants and, Third-Party Plaintiffs, v. MARTINDALE-HUBBELL, INC., Third-Party Defendant.
• Court: U.S. District Court — District of Maryland

568 F. Supp. 398

Patricia Riley SOPER, et al., Plaintiffs, v. Burt M. KAHN, Esquire, et al., Defendants and, Third-Party Plaintiffs, v. MARTINDALE-HUBBELL, INC., Third-Party Defendant.

Civ. A. No. M-83-1011.

United States District Court, D. Maryland.

July 22, 1983.

Robert Earl Wilson and Huber, Lutche & Wilson, Baltimore, Md., for plaintiffs.

Albert D. Brault and Brault, Graham, Scott & Brault, Rockville, Md., for defendants and third-party plaintiffs.

Craig E. Smith, Kathleen M. McDonald and Venable, Baetjer & Howard, Baltimore, Md., for third-party defendant.

MEMORANDUM OPINION

JAMES R. MILLER, Jr., District Judge.

Patricia Riley Soper and her husband, William L. Soper, Jr., plaintiffs, filed this suit in the Circuit Court for Prince George's County in Maryland against Burt M. Kahn, Esquire and the law firm of Baskin & Sears, defendants, alleging, among other things, that defendants were guilty of legal malpractice. The defendants impleaded Martindale-Hubbell, Inc., third-party defendant, for indemnification and/or contribution on the underlying malpractice claim. Pursuant to 28 U.S.C. § 1441, the third-party defendant removed the entire action to this court,¹ alleging diversity jurisdiction in accordance with 28 U.S.C. § 1332. The pleadings demonstrate that there is diversity only as to the third-party claim and that there is no diversity on the main claim.²

Pending before the court is defendant's Petition for Remand³ which has been opposed by the third-party defendant.⁴ Also pending is the third-party defendant's Motion for Severance of Third-Party Claim⁵ which is contested by defendants.⁶ Additionally, the third-party defendant has filed a Motion to Dismiss.⁷ The court, however, extended the response time to that motion until after a decision on the petition to remand.⁸ A hearing was held on the Motion to Remand on July 1, 1983.

According to the original complaint, the plaintiffs engaged the legal services of the defendants when Mrs. Soper learned that she had been mistakenly subjected to an unauthorized and allegedly dangerous operation after having given consent to having a simple appendectomy performed in a New Jersey hospital. She contends in this case that defendants erroneously advised her husband and her of the applicable statute of limitations for filing a medical malpractice suit in New Jersey. According to plaintiffs, defendants advised them that the period of limitations was two years from the time when a plaintiff reaches the age of majority. They allege that defendants negligently and erroneously told them that the age of majority in New Jersey was twenty-one. Because Mrs. Soper relied on that advice, her medical malpractice action became time-barred.

In their third-party complaint,⁹ defendants seek liability from Martindale-Hubbell, Inc. in the form of indemnification and/or contribution. Defendants allege negligence and breach of warranty for fitness of intended use based on defendants' claim that they relied on the information as to the applicable statute of limitations and age of majority in New Jersey listed in the law digest published by the third-party defendant and distributed to attorneys on a nationwide basis.

Defendants' petition to remand is based upon 28 U.S.C. § 1441. In pertinent part, that jurisdictional statute provides:

"(a) Except 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, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) 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 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 remand all matters not otherwise within its original jurisdiction."

Defendants maintain that removal in this case was improper because § 1441 does not envision removal by a third-party defendant and that even if a third-party could remove, the instant action does not constitute a "separate and independent" claim or cause of action. 28 U.S.C. § 1441(c).

The burden to establish federal jurisdiction under the removal statute rests with the party seeking removal or, in this case, Martindale-Hubbell. See 28 U.S.C. § 1446; Capitol Cake Co. v. Lloyd's Underwriters, 453 F.Supp. 1156, 1160 n. 7 (D.Md. 1978) (Miller, J.). In construing the merits of the removal in this action, the court is bound by the grant of jurisdiction conferred in the applicable statute and is not permitted the discretion to venture beyond the terms provided for therein.¹⁰ Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Therefore, the fact that plaintiffs have not joined in the petition to remand does not affect the court's analysis which follows especially because the court would have had to raise this jurisdictional issue sua sponte even if all of the parties had agreed to removal in this case. See Thompson v. Gillen, 491 F.Supp. 24, 26 (E.D.Va.1980).

There is an irreconcilable split of authority on the question of whether a third-party may remove. The jurisdictions which do not allow third parties to remove interpret the removal statute literally to mean that only a "defendant or the defendants" to the original claim may seek removal in accordance with § 1441(a). See generally Share v. Sears, Roebuck & Co., 550 F.Supp. 1107, 1108-09 (E.D.Pa.1982) (third-party may not remove regardless of complete diversity over main and third-party claims); Continental Resources & Mineral Corp. v. Continental Insurance Co., 546 F.Supp. 850, 852 (S.D.W.Va.1982) (recognizing "a dearth of authority in the Fourth Circuit" on the issue); Chase v. North American Systems, Inc., 523 F.Supp. 378, 381-82 (W.D.Pa.1981) (complete diversity case); Friddle v. Hardee's Food Systems, Inc., 534 F.Supp. 148, 149-50 (W.D.Ark.1981); Garnas v. American Farm Equipment Co., 502 F.Supp. 349, 351 (D.N.D.1980); Folts v. City of Richmond, 480 F.Supp. 621, 624-25 (E.D.Va. 1979) (cross-claimant may not remove either under § 1441(a) or § 1441(c)). Courts adopting this interpretation reason that jurisdictional statutes are to be construed strictly against granting jurisdiction and that any deviation from the literal meaning of the statute would constitute the usurpation of legislative power by judicial fiat. The major commentators are in agreement with this position. See 1A Moore's Federal Practice 2d Ed. § 0.16710 (1979); 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3724 at 643-46 (1976). In support of this construction, the legislative history of the removal statute is often cited to show that a prior version of the statute allowed "either party or any one or more of the plaintiffs or defendants" to remove and that because that version has long since been repealed, it is the Congressional intent to restrict removal jurisdiction solely to defendants to the main claim. Share v. Sears, Roebuck & Co., 550 F.Supp. 1107, 1108 (E.D. Pa.1982) (quoting from section 12 of the Judiciary Act of 1875).

The courts which have allowed third-party defendants to remove (including the only court of appeals to have decided the issue) primarily stress that an overly technical reading of the statute obscures the general purpose of § 1441(c) which is to grant jurisdiction if the disputed claim is sufficiently separate and independent that it would be removable if sued upon alone. These courts emphasize that the literal approach results in a nonuniform application of the removal statute because joinder of party rules (which dictate whether a claim is in a third party format or will be sued upon alone) may vary from state to state and that this result presumably runs contrary to the doctrine of uniform application espoused in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214 (1941). Some of these courts further reason that the fortuity of being sued as a foreign third-party defendant in state court should not strip the litigant of the federal jurisdictional protection otherwise cloaking him under § 1441 if he had been sued in a separate case in state court for the same claims. See Carl Heck Engineers, Inc. v. LaFourche Parish Police Jury, 622 F.2d 133, 135-36 (5th Cir.1980); Ford Motor Credit Co. v. Aaron-Lincoln Mercury, Inc., 563 F.Supp. 1108 at 1112-15 (N.D.Ill.1983); Columbia Casualty Co. v. Statewide Hi-Way Safety, Inc., 94 F.R.D. 182, 183-84 (D.N.J. 1982); Motor Vehicle Casualty Co. v. Russian River County Sanitation District, 538 F.Supp. 488, 493 (N.D.Cal.1981); Peturis v. Fendley, 496 F.Supp. 203, 205 (S.D.Ala. 1980); Marsh Investment Corp. v. Langford, 494 F.Supp. 344, 348 (E.D.La.1980), aff'd, 652 F.2d 583 (5th Cir.1981) (per curiam), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982); Bond v. Doig, 433 F.Supp. 243, 248 (D.N.J.1977); Ted Lokey Real Estate Co. v. Gentry, 336 F.Supp. 741, 743 (N.D.Tex.1972); Wayrynen Funeral Home, Inc. v. J.G. Link & Co., 279 F.Supp. 803, 806 (D.Mont.1968); Rafferty v. Frock, 135 F.Supp. 292, 293 (D.Md.1955) (Thomsen, J.); Industrial Lithographic Co. v. Mendelsohn, 119 F.Supp. 284, 286 (D.N.J. 1954); see also Alifieras v. American Airlines, Inc., 523 F.Supp. 1189, 1192 (E.D.N.Y....