Vidmar Buick Co. v. General Motors Corp.

• Decision Date: 26 September 1985
• Docket Number: No. 85 C 6051.,85 C 6051.
• Citation: 624 F. Supp. 704
• Parties: VIDMAR BUICK COMPANY, an Illinois corporation, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

624 F. Supp. 704

VIDMAR BUICK COMPANY, an Illinois corporation, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant.

No. 85 C 6051.

United States District Court, N.D. Illinois, E.D.

September 26, 1985.

David J. Griffin, Rhoda Elvove Markovitz, Griffin & Griffin, Ltd., Chicago, Ill., for plaintiff.

Bruce Meckler, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

This matter is before the court upon the Motion of plaintiff Vidmar Buick Company ("Vidmar") for Remand or, in the alternative, for Reconsideration of the State Court Order Transferring Venue. For the reasons set forth below, Vidmar's motion is denied.

I. Removability of Vidmar's Claim in the Initial Complaint

Vidmar contends that its claim in the initial complaint filed in state court on April 16, 1985 was removable, and that defendant General Motors Corporation ("GM") failed to remove this claim from state court within thirty days of receipt of the initial complaint, as required under 28 U.S.C. § 1446(b). Vidmar presents two arguments in support of its contention that its claim in the initial complaint was removable: (1) Vidmar's claim was separate and independent from the claims of co-plaintiffs Stillwell Buick and Gartner Buick, and the entire case was therefore removable under 28 U.S.C. § 1441(c); and (2) under Mielke v. Allstate Insurance Co., 472 F.Supp. 851 (E.D.Mich.1979), GM should not have waited for a state court order transferring venue because it was obvious, from the face of the complaint, that Vidmar improperly sued GM in DuPage County with co-plaintiffs Stillwell and Gartner.

As for Vidmar's first argument, the court finds that the claim or cause of action of Vidmar in the initial complaint is not separate and independent from those of co-plaintiffs Stillwell and Gartner. In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), the Supreme Court interpreted the "separate and independent" requirement of § 1441(c). The Court concluded that:

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 independent claim or cause of action under § 1441(c).

Finn, 341 U.S. at 14, 71 S.Ct. at 540. While Finn involved one plaintiff and multiple defendants, the "single wrong" test adopted by the Court also applies in a case, such as the instant case, involving multiple plaintiffs and one defendant. See Layden v. Zantop Air Transport, Inc., 265 F.Supp. 743, 748 (N.D.Ill.1967).

In this case, the three plaintiff automobile dealers allege that GM violated the Motor Vehicle Franchise Act, Ill.Rev.Stat. ch. 121½, § 751 et seq., when GM established another Buick dealership in the plaintiffs' market area. The plaintiffs allege that one happening — the establishment of an additional Buick franchise in the Bolingbrook, Illinois area — adversely affected all three plaintiffs. Following Finn, the court finds that Vidmar's claim or cause of action in the initial complaint is not separate from those of co-plaintiffs Stillwell and Gartner.

The court finds Vidmar's second argument without merit. GM properly waited for a state court order transferring venue before removing Vidmar's cause of action to federal court. It was not unambiguously obvious on the face of the complaint that Vidmar's cause of action was removable. In addition, the removal statute contemplates situations in which defendants wait for enabling state court orders before removing to federal court.¹

II. Removability of Vidmar's Case After the State Court Order Transferring Venue

The three plaintiff dealerships filed their initial complaint against GM in DuPage County, Illinois. On May 23, 1985, GM filed a Motion to Dismiss Vidmar, asserting that Section 762 of the Motor Vehicle Franchise Act, which provides that "... a proceeding ... shall be commenced by the objecting franchisee in the Circuit Court of the County in which the objecting franchisee has its principal place of business," mandated that Vidmar commence its suit in Will County, Illinois.² On June 18, 1985, the state court denied GM's Motion to Dismiss, but entered an order, sua sponte, transferring Vidmar's complaint to the Circuit Court of Will County pursuant to Section 762. GM removed Vidmar's complaint to this court on July 1, 1985, less than thirty days after the state court order transferring venue, as required under 28 U.S.C. § 1446(b).

Vidmar asserts that GM may not remove Vidmar's claim under Section 1446(b) because the state court order did not amount to an "amended pleading, motion, order or other paper" which would commence the thirty-day period of time for filing a removal petition. According to Vidmar, the "amended pleading, motion, order or other paper" referred to in Section 1446(b) must be one that has been filed by the plaintiff. Vidmar cites a long line of cases, starting with Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898), which hold that, apart from fraudulent joinder, when a plaintiff states a non-removable case in his initial complaint, only a voluntary act of the plaintiff will make the case removable.

It is obvious that the plain language of Section 1446(b) does not mandate the voluntary/involuntary distinction.³ In fact, there has been some debate as to whether Congress intended to abolish the distinction when it amended Section 1446(b) in 1949, adding what is now the second paragraph in sub-section (b).⁴

The majority of cases, some of which were decided after the 1949 amendment, follow the voluntary/involuntary distinction; however, most of these cases involve a directed verdict against a nondiverse defendant without a voluntary act on the part of the plaintiff. See, e.g., Self v. General Motors Corp., 588 F.2d 655 (9th Cir.1978); Weems v. Louis Deryfus Corp., 380 F.2d 545 (5th Cir.1967). See also cases cited in 14A Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters, § 3723, n. 18 (1985). The underlying purpose of the voluntary/involuntary rule in these cases is "to protect plaintiff's choice of forum as long as he wants it protected."⁵Ford Motor Credit Co. v. Aaron-Lincoln Mercury, 563 F.Supp. 1108, 1117 (N.D.Ill.1983). See also Self, 588 F.2d at 659.

To protect the plaintiff's choice of forum in the present case would lead to an unfair result because Vidmar's choice of forum was improper under Illinois law.⁶ Indeed, this case is not unlike those cases, specifically excepted from the voluntary/involuntary rule, in which the plaintiff has fraudulently or improperly joined a party to defeat diversity.

In Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430 (1907), the case in which the Supreme Court accepted and applied the theory of fraudulent joinder of parties defendant, the Court commented:

The Federal courts should not sanction devices intended to prevent a removal to a Federal court where one has that right, and should be equally vigilant to protect the right to proceed in the Federal court as to permit the state courts, in proper cases, to retain their own jurisdiction.

Wecker, 204 U.S. at 186, 27 S.Ct. at 188. In a more recent case, Picquet v. Amoco Production Co., 513 F.Supp. 938 (M.D.La. 1981), plaintiffs created, and transferred a small per cent of their interest in land to, a Delaware corporation immediately prior to their suit against another Delaware corporation. The court concluded:

Considering the congressional purpose, the protection of the noncitizen who is obliged to sue or to be sued in the state of his adversary, a federal district court ought to inquire into improper or fraudulent joinder of plaintiffs as well as improper or fraudulent joinder of defendants where the motive is to defeat federal jurisdiction.

Picquet, 513 F.Supp. at 943.

In the present case, Vidmar improperly joined with Stillwell and Gartner in their suit in DuPage County. Under Section 762 of the Illinois Motor Vehicle Franchise Act, the proper venue for Vidmar's suit was Will County while the proper venue for Stillwell and Gartner, the nondiverse plaintiff, was DuPage County. Had Vidmar properly initiated its suit against GM in Will County, GM would have been able to remove the suit immediately on the basis of the complete diversity of Vidmar and GM.

Vidmar's filing of its suit in an improper venue in order to join with Stillwell and Gartner, a nondiverse plaintiff, falls within the category of devices intended to prevent removal which federal courts should not sanction, and, as such, it also falls within the exception to the voluntary/involuntary rule. The state court order, therefore, did amount to an order which, under section 1446(b), would commence the thirty-day period of time for filing a removal petition, and GM properly filed within thirty days of the state court order transferring venue.

III. Validity of the State Court Order Transferring Venue

Vidmar contends that the court should reconsider and vacate the state court order transferring venue for two alternative reasons: (1) GM waived its venue objection as to Vidmar when it first filed a general appearance; and (2) DuPage County was the proper venue for Vidmar's suit under the Illinois Code of Civil Procedure, Ill.Rev. Stat. ch. 110, § 1-101 et seq.

Vidmar's first argument is clearly without merit. Section 2-104(b) of the Illinois Code of Civil Procedure does not require a defendant to object to venue before filing a general appearance; rather, it provides:

All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by a defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint....

In the case which Vidmar cites in support of its...