MEMORANDUM OPINION
This action is presently before the Court to consider the plaintiff’s motion to remand it to the Bell Circuit Court. Jurisdiction is predicated upon 28 U.S.C. § 1332, diversity of citizenship.
Originally instituted in the Bell Circuit Court in Kentucky, this is a suit for products liability brought by the plaintiff as administratrix of the estate of her husband against the defendant, General Motors Corporation (GMC), a Delaware corporation, and the defendant Epps Chevrolet Company, a Kentucky corporation, alleging that the deceased died as a consequence of a defective truck manufactured by GMC and sold by Epps Chevrolet Company.
When this action was initiated, it was not an action wholly between citizens of different states, since both the plaintiff and Epps Chevrolet Company were citizens of Kentucky. During the pendency of the state court action, the resident defendant, Epps Chevrolet Company, on its motion, was granted a summary judgment on March 19, 1975. Thereafter, on April 1, 1975, GMC filed a petition for removal to this Court pursuant to 28 U.S.C. § 1446(b). Plaintiff contends that the action was improperly removed and that it should be remanded to the Bell Circuit Court. For reasons which follow, the Court agrees with plaintiff’s position.
Under 28 U.S.C. § 1446(e), upon the filing of the removal petition and the posting of a bond, all action in the state court proceedings shall abate unless and until the case is remanded from the district court. The consequence of GMC’s action was to halt all further proceedings in the state court, including the trial on the matter scheduled for April 17, 1975, as well as to prevent plaintiff from securing review of the dismissal order.
Plaintiff contends that removal is impermissible absent a voluntary dismissal as to the resident defendant. Under the authority of
American Car and Foundry Company v. Kettelhake,
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty 1 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.
There is nothing in this statute [28 U.S.C. § 1446(b) ] from which it can be properly inferred that Congress intended that a removal could be effected only in the event the plaintiff voluntarily did something which removed the local defendant from the case.
However, the overwhelming majority of discussions have held that the 1949 amendment to 28 U.S.C. § 1446(b) did not abolish the voluntary-involuntary rule and that:
If, though, apart from fraudulent joinder, plaintiff states a non-removable case in his initial complaint, involuntary changes will not make the case removable; they must have been brought about by the voluntary act of the plaintiff.
1A Moore’s Federal Practice ¶ 0.168 [3.-5] at 487 (2d ed. 1974). See
Warren Bros. Co.
v.
Community Building Corp.,
It is the defendant’s contention that the state court’s order of dismissal incorporating so much of plaintiff’s remarks to the effect that “the attorneys for plaintiffs stating to the court that they could not resist the motion seriously” is such an order from which it may be ascertained that the case is one which is or has become removable. The Court cannot agree, however, that such an order entered on the resident defendant’s motion constitutes a sufficiently voluntary act by the plaintiff to make the cause removable. On the contrary, it was the voluntary action of the resident defendant rather than an act of the plaintiff which is now relied upon as grounds sufficient to justify removal.
The rationale and meritorious purpose of the voluntary-involuntary test is the prevention of premature removals in cases where the issue of the resident defendant’s dismissal has not been finally determined in the state court. See
Weems
v.
Louis Dreyfus Corp., supra; Ennis v. Queen Ins. Co.,
The defendant’s second contention in its excellent brief in opposing remand is that plaintiff’s initial action against the resident defendants constituted collusive joinder and for that reason the case is properly removed to federal court. In determining whether there has been collusive joinder, it was said in
Continental Oil Co. v. PPG Industries, Inc.,
[T]he test is not whether the defendants were added to defeat removal but whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved on defendants.
It is apparent from an examination of Kentucky law that there is a reasonable basis for predicting that the plaintiff may have recovered against the resident defendant on a theory of implied warranty or strict liability. See
Jones v. Hutchinson Mfg., Inc.,
It must always be borne in mind that a federal court is a court of limited jurisdiction and can only entertain those actions which fall squarely within its jurisdiction as that jurisdiction is stated by the act or acts of Congress in conformity to the Judiciary Articles of the Constitution. This court has a responsibility to. accept jurisdiction in all proper cases. It has a greater obligation to protect the jurisdiction of the State court, both by reason of comity to that court and fairness to litigants who have chosen it as a forum. Where there is doubt as to federal jurisdiction, the doubt should be construed in favor of remanding the case to the State court where there is no doubt as to its jurisdiction.
An order will be entered granting plaintiff’s motion to remand to the Bell Circuit Court.
Notes
. In 1965, Pub.L. 89-215 substituted “thirty days” for “twenty days” wherever appearing in the 1949 amendment.