FOSTER v. CITY OF PHILADELPHIA
2:11-cv-04817
E.D. Pa.Oct 25, 2011Background
- Foster, as administratrix of the estate of Allen Wimberly, Jr., filed a state court medical malpractice action against Dr. Scogna and Frankford Hospital entities.
- Scogna filed a joinder complaint adding City of Philadelphia and PPS/PICC defendants, seeking removal to federal court based on 42 U.S.C. § 1983 claims.
- Foster moved to remand arguing third‑party defendants cannot remove under § 1441.
- Foster’s federal claim (under § 1983) was alleged in the joinder complaint, while the original state court action asserted only state law claims.
- The district court (E.D. Pa.) remanded, holding that § 1441(c) cannot authorize removal by a third‑party defendant and that well‑pleaded complaint rule governs jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether third‑party defendants may remove under § 1441(a). | Foster argues third‑party defendants are not ‘defendants’ under § 1441(a) and cannot remove. | Third‑party defendants may remove where removal is proper under § 1441(a) and the claim is within original federal jurisdiction. | Removal by third‑party defendants is improper; remand granted. |
| Whether § 1441(c) permits removal when a federal claim is joined with state claims via a third‑party complaint. | Ownership of the federal claim by the plaintiff remains in state court; third‑party joinder should not permit removal. | § 1441(c) allows removal when an independent federal claim is joined with other claims. | § 1441(c) does not authorize removal by a third party in this context; remand proper. |
| Whether the well‑pleaded complaint rule governs whether federal jurisdiction exists in this context. | The plaintiff’s complaint should control; federal jurisdiction arises from the plaintiff’s well‑pleaded claims. | The removal basis lies in the federal claim asserted by the third‑party defendant. | Well‑pleaded complaint rule governs; no federal question jurisdiction existed from Foster’s complaint; remand proper. |
Key Cases Cited
- Roxbury Condo. Ass’n, Inc. v. Anthony S. Cupo Agency, 316 F.3d 224 (3d Cir. 2003) (uncertainty about third‑party removal under § 1441; Third Circuit discusses limits on removal by non‑parties)
- Cook v. Wikler, 320 F.3d 431 (3d Cir. 2003) (addressing appellate review of remand for improper removal; acknowledges unsettled questions about third‑party removal)
- First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456 (6th Cir. 2002) (majority view that third‑party defendants are not ‘defendants’ for § 1441(a) removal)
- Spectator Mgmt. Group v. Brown, 131 F.3d 120 (3d Cir. 1997) (discusses removal limitations under § 1441 and related principles)
- Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941) (establishes that removal jurisdiction is to be narrowly construed)
- Lewis v. Windsor Door Co., 926 F.2d 729 (8th Cir. 1991) (third‑party defendants generally not permitted to remove)
- Thomas v. Shelton, 740 F.2d 478 (7th Cir. 1984) (concerns third‑party removal limitations)
- Cross Country Bank v. McGraw, 321 F. Supp. 2d 816 (S.D. W. Va. 2004) (applies well‑pleaded complaint rule to determine jurisdiction)