Tommy Duane Thomas, Jr. And Marilyn Kay Terrell, His Parent and Guardian, and United States of America v. Gerald Shelton and Barbara Shelton

POSNER, Bеfore ESCHBACH and Cir- SWYGERT, Judges, cuit Senior Circuit Judge.

POSNER, Judge. judge allowing Circuit erred in it to remove the case) tell us that we need not decide this appeals present These consolidated is- question. They say that if the district sues of federal removal court exonerating was them from Indiana tort law. The Sheltons own a liability Tommy’s injury issue the it, —an They farm. and their leased lessee in court government’s had to decide in the turn on the farm sublet a house to the suit liability because their under the Medi Thomas, stepfather Tommy age 11. Recovery depends cal Care Act on their Tommy seriously injured when he be- being found liable to under the tort entangled large silage auger came in a state, law of pertinent Heusle v. Na mother, the farm. his Joined he tional Mutual Ins. brought a tort suit an Indiana state (3d Cir.1980), аgree which all is Indiana—it court the Sheltons. Because Tom- is academic Tommy’s whether suit was my’s is a member natural father properly removed court. But forces, paid armed the United Tom- this Tommy’s is incorrect. If suit was im my’s and then expenses medical sued the properly removed, party he was not a to Sheltons in a federal district court in Indi- the proceedings in the district and is expenses ana to recover those under the by therefore not the judgment bound Act, Recovery Medical 42 Care U.S.C. unless, favor of perchance, the § Sheltons— provides any 2651. The that in Act case privity he was in States, with the United where the is authorized United States or Indiana, which party. however, was a In required by provide law to medical care to privy who, “A is one after the commence person injured ... under “who is circum- [i.e., government’s ment of the the action creating liability upon stances a tort some against Sheltons], action acquired the has person pay damages therefor, third ... to an interest in subject the matter affected the right United shall have a States to by through judgment the or under one of person recover from said third the reason- parties, inheritance, succession, by as able value of the care treatment so purchase.” McClellan, or v. Tobin 225 shall, right furnished as to ... and 335, 344, 679, (1947) Ind. 73 N.E.2d 683 subrogated right any to or claim that the (italics deleted). Tommy's claim against injured person against ... ... has such the Sheltons thus would have to be deriva person third of the to the extent reasonable government’s tive from the claim for him value оf the and treatment care so fur- Biggs Marsh, to be bound. See 446 ____” Fearing nished liability double 977, 1983). (Ind.App. N.E.2d 983 It is not. Tommy’s expenses, medical the Sheltons interpleaded Tommy’s States in United concept privity Even if the were state-court action. The United States then definition, given purely functional so that removed the entire action to the federal parties in privity were deemed whenever district court “ where suit say ‘it is realistic to that the third party pending. Sheltons was The district ” court trial,’ fully protected in the first actions, gave consolidated the two summa- Wheeler, 1147, 440 Burtrum v. N.E.2d ry judgment Sheltons, for the and dis- (Ind.App.1982) (dissenting opinion), 1156 holding missed complaints, both that the quoting Nye, Ind.App. In re Estate 157 liable Tommy Sheltons were not to 854, (1973); 870 299 N.E.2d see government therefore not to the either. Wheeler, supra, also Burtrum v. 440 Tommy appeal- States have the United 1152, Tommy N.E.2d at would not be in ed. privity government. with the All logical question government

Although the first has at stake its suit is Tom my’s Tommy’s expenses. they is whether the removal of medical As are claim, proper, Tommy’s court action to federal court was fraction of there can be no was, (who government assurance fight Sheltons believe while the would government says prove Tommy as hard now district to its claim as 482 (Second) remove state action Restatement of ment’s court prove his. Cf. j seeking extinguish comment

Judgments a federal lien cannot extinguished simple expedi itself be judg the district court’s Since statute; citing ent of not and the Shel did not ment in Shelton United interpleader petition tons’ did make refer claim, court extinguish Tommy’s thе state possible ence to a federal lien. But section be remand his case would have to to which (and 1444) inappli therefore section might con improperly removed ed if it was cable to this case because there is no lien. clude, notwithstanding the district court’s States, Cummings Cf. v. United decision, the Sheltons are liable Cir.1981); Haggard v. Lan question in tort. The removal caster, (N.D.Miss. F.Supp. argue is not moot. The Sheltons therefore 1970). against property. A a claim lien is any one of three sections Judi Recovery The Medical Care Act does not the removal of cial Code authorized his §§ 1441(a), 1444, give a claim case: U.S.C. 1441(c). first, linger over the anybody property, We need tortfeasor’s or else’s but 1441(a), “any which allows civil ac just a cause of action the tort brought in a court of lien, tion State see, judgment may feasor. A create a district courts of the United States have Smith, e.g., Rhea v. U.S. S.Ct. original jurisdiction” to be “removed (1927), the cause of L.Ed. but ...,” subject defendant or the defendants itself, claim, merely personal does 1441(b) in section that are not to limitations Sons, Inc., not. In See re R.E. Tull & Tommy’s against the material here. action 709, (Bankr.D.Md.1982); B.R. cf. 710 10A alleged not on the vio Sheltons was based Thompson, Commentaries on the Modern (was lation of a federal not even §§ (Grimes Property Law of Real 5303-04 claim, government’s derivative from the as 1957). Although judicial opinions ed. a few seen) have and also not we between use the word “lien” to refer to the interest citizens of different states. It thus was creates, e.g., that section 2651 Standefer original jurisdiction any not within States, 101, United 511 F.2d 106 Cir. argue federal court. To district 1975),they loosely, synonym use it as a for Recovery Medical Care Act makes a tort 2651 claim. No case holds that section under claim arise federal law because the gives purposes the United States a lien for government has an interest in that claim as anything of removal or else. untenable, subrogee is as held in Becote Highway Dept., Carolina South State § 1441(c)provides Finally, 28 U.S.C. (D.S.C.1970). F.Supp. Federal that, separate indepen a “Whenever jurisdiction depends allegations on the action, dent or cause of which would claim complaint rather than on issues that alone, upon joined if sued is be removable come in later. Franchise Tax Bd. v. Con or more otherwise non-removable with one Trust, struction Laborers Vacation action, the entire case claims or causes 2841, 2846-47, U.S. 103 S.Ct. 77 L.Ed.2d may may be removed and the district court (1983). therein, or, in determine all issues its dis cretion, may remand all matters not other Section authorizes the Unit original jurisdiction.” wise within its any brought ed States remove apparent purpose provision § of this and its under 28 U.S.C. (1940 ed.), predecessor, 28 U.S.C. is naming of the authorizes United States prevent plaintiff who sues a defendant party as a in state court actions to fore on a claim within the federal close, to, condemn, state court quiet property title etc. original jurisdiction attempt courts’ from in which the United States has or claims ing right of re to defeat the defendant’s lien. The Sheltons did not cite this statute juris by joining movаl a claim within interpleading Tom my’s govern- state court action. But the diction. 1441(c),

Although which is completely any section unlike unrelated to claim explicitly section not limited within the original old is federal district courts’ cases, diversity principal maybe jurisdiction may not one be case within the only is to cases. If application meaning such it were Constitution, Article III of the plain diversity not for in which event the unrelated claim would litigate tiff wanted to his case in state who jurisdiction. be outside that could, by joining simply court a claim Another use for section state, destroy a resident of his federal-question can conjectured. cases be complete diversity required for federal di In a case defendant, with more than one versity jurisdiction prevent and thus the consent of all the defendants is neces removing. from nonresident sary 1441(a) for removal under section but Equipment Owen & Erection Co. v. Kro 1441(c). not for removal under Bernstein ‍‌‌​‌​‌​​​‌​​‌​‌​‌​‌​​​‌​​‌‌‌​‌​‌​​‌‌​‌‌​‌​‌‌​​‌‌‍365, 374, ger, U.S. S.Ct. v. Lind-Waldock & If, however, 57 L.Ed.2d 274 (7th Cir.1984). If, therefore, law, plaintiffs under arose federal 1441(c) did apply not to federal-question joining nonfederal claim not would defeat cases, plaintiff prevent who wanted to removal. This is true whether the nonfed might removal of such a case try join closely eral claim was related to the federal ing (and an unrelated claim therefore one completely claim or unrelated. If the for pendent not jurisdiction within the mer, pendent juris it would within the be courts, federal broadly construed) however (at diction of the federal district courts against a hope second defendant in the least if there was one defendant— defendant, reason, might whatever see, complications, there are as we shall not consent to removal. But this it “pendent party” jurisdiction when is assert argued can be as if before that the second ed); then the whole case would be unrelated, claim truly first would be original within the jurisdiction of those separate action removable under section therefore courts and removable under sec 1441(a), if while second related it 1441(a). unrelated, tion If the claims were pendent would within the be cases, really there two one—a the federal courts and therefore the whole case, case, an unrelated state case would be under removable that section first and the could bе removed under sec 1441(c). and under not 1441(a). federal-ques tion We know of no tion case that was held nonremovable be assumes, however, pendent-par- This 1441(c) merely fore section was enacted ty jurisdiction concept, is a viable for here plaintiff joined had a state because pendent against claim is a different claim with his federal claim. defendant from the main claim. The viabil- ity concept may of the not have been clear Maybe, though, very purpose of sec- 1441(c) enacted; when section was as we 1441(c) federal-question tion in is cases to see, shall today. maybe it is not clear So of allow removal both federal claim and plaintiff prob- could have created removal an unrelated state two together claim —the adversary by joining lems for his a related constituting the “entire ease” that is re- against a claim new defendant. But this 1441(c) separate under if a movable unlikely. claim, seems If (and second independent unrelated?) therefore related, though original was not within the complaint original in the is within the claim jurisdiction federal courts because jurisdiction of federal district courts. pendent jurisdiction construed, however, narrowly was 1441(c) con- So ceived, again this questions. would be a situation of raise constitutional See would Hospitable Lewin, masquerading two eases Federal Courts’ as one. And the first, “Separate removability case, Back Door—Removal the federal Independent” Ac- Non-Federal Causes be affected the lаck of feder- should tion, 423, (1953). over, jurisdiction al 66 Harv.L.Rev. 431-42 and hence nonremova- of, bility For a combination of two claims one of the second case. now, They have right hard to remove his action. no apparent by it is be

As should 1441(c) in Tommy’s claims function for section because none of to find a such (unless it is to allow juris- federal-question original cases the district court’s is within case, be very cannot in this which removal in this case to But there is no need diction. statute). any other removal under removed 1441(c) can never be in- that section hold the section application of Clearly the main if it federal-question in a case. Even voked Currie, See, Fed- e.g., diversity cases. is to now in circumstances that cannot be can be (1981); cf. 136-38 Charles Jurisdiction eral foreseen, do can be in this we not think it Service, Inc. v. McCar- Linen D. Bonanno reach We this conclusion even case. Cir.1983). 1, (1st But 9-10 thy, 708 persuaded are the thresh- though we 1441(c), unlike that section the fact requirement of section old —that di- limited to is not in terms predecessor, original separate claim within the be courts cases has made most versity courts— federal district to applies it conclude that commentators This, however, in this satisfied case. See, e.g., federal-question cases as well. explanation. The requires some Sheltons’ 117; 10; Currie, Wright, supra, at id. at complaint did not assert a and Pro- Cooper, Federal Practice Miller & the United States “claim” pen- p. at Since cedure object ordinary precip- sense. Their was to broadly definеd jurisdiction was not so dent government them. itate the suit enacted, when section they if were They were afraid that held Oursler, today (compare it Hum as Tommy paid judg- liable L.Ed. 1148 53 S.Ct. 289 U.S. expenses, included his medical ment (1933), with United Mine Workers later were forced to reimburse the Gibbs, S.Ct. 383 U.S. under Care Recov- government the Medical (1966)), possible though L.Ed.2d 218 it is — they ery expenses, Act for the same conjecture this there is no evidence for having to for the up pay twice same end in section beyond the deletion the words damages. they if could force item of But to diver- limiting separate-claim removal at the same sue them wor- the draftsmen were sity cases—that Tommy, they in the same court as time and plaintiff if a a federal ried that with very forcefully argue could litigate in state court that he wanted his be to recover medi- should not allowed claim, only the a related state law joined Although from expenses them. col- removed, cal and the federal claim could be (or collateral-source) rule of economy. lateral-benefits judicial would be a loss of result law, argued rule still force in But can be the common —consist- later) (of Indiana, more ently with much lore victim’s dam- provides that a tort effect that statutes are merely to the removal not be because ages shall reduced wrong to narrowly construed it is part of his is covered insur- all or loss —that Congress intent to attribute to in 1948 an compensation, other of ance or some source removability by bringing federal- broaden always exception rulе has had an for the scope sepa- question cases within the of the cases, is, subrogation cases where the that appears removal For it rate-claim section. compensates the tort victim person who from the Reviser’s Note to acquires right him a thereby from action objective revising section 71 was that the tortfeasor, government the as the against it, applied 71 had narrow to by of the Medical Care did here virtue diversity cases. only to Recovery Act. v. See Heusle National Co., 837; F.2d at supra, Ins. Mutual some Even if could think of we Merrigan, generally v. see United States the plaintiff impede a could way in which (3d Cir.1968). The collater- case, way a federal-question a removal of plaintiff to block, rule the be al-benefits allows to intended that section was intended overcompensated but is not to justified here. would not have removal we twice; pay that would try the Sheltons’ make the tortfeasor Tommy did not to defeat forum, well jumps result overdeterrence as as over- state gun brings the a compensation. subrogation So where declaratory judgment action in state court play applied part the is not to rule the against plaintiff. the prospective If the party plaintiffs the claim that the third suit, latter cannot remove that the by acquired subrogation. v. See Powers way gain he can a access to federal forum Ellis, 231 Ind. 108 N.E.2d by bringing independent an action in Reid, (1952); Roger 417 N.E.2d federal par- court. There will then be two (dictum); (Ind.App.1981) Fleming, pending allel actions in different courts. Collateral Source Rule and Loss Alloca- This undesirable result can be by avoided Law, tion in Tort 54 Calif.L.Rev. allowing prospective plaintiff the federal to 1498-99 declaratory judgment remove ac- (in why may important defendant)

That is be it to the tion which he is the to feder- liability Sheltons to have their to the Unit- only question al court. The be, should States, subrogee, ed no la- therefore, determined whether the state declaratory judgment ter than when is entered Tom- judgment action could have been filed in suit; my’s why that is Sheltons’ originally. federal court It could have third-party complaint fulfilled an historic declaratory been if the judgment plaintiff declaratory judgment office actions— asserting right was not a under state law enabling to precipitate that that, although might preempted by plaintiff’s multiple suit in order to avoid declaratory judgment defendant’s fed- liability or other inconvenience. Illinois ex rights, eral did not law, arise under federal rel. Barra Archer Daniels Midland trying but instead was precipitate to a suit (7th Cir.1983). 939-40 Of by the defendant based federal law. course, get if the even Sheltons could not Thus, if the Sheltons had a state government accelerate suit against law claim government federal they argue them could still that government expected that the could be Tommy had no to collect from them by law, invoking defend their suit expenses government the medical declaratory judgment for would not be paid argue had by paying, for—could original jurisdiction any within the feder government acquired Tommy, had from rights al district court they because the rеlinquished, had his tort claim asserting were would not derive from fed expenses. Sheltons those doing eral law. But if all they were argument, But this ultimately based as it is bringing declaratory judgment having on a fear of action pay damages, double forcing strengthened would be if the Sheltons accelerate its they really could show would have to federal-law suit them—and that pay the government they under the doing Medical was all were in their Act, Recovery complaint Care and therefore that in would be within —then making they argument asking were not jurisdiction, inas the de cases where for a windfall. claratory judgment plaintiff alleged is an patent infringer seeking a determination of long assumed, though It has been with patent rights. defendant’s Such a de point, out discussion declara claratory judgment action is within the action, action, tory judgment like any other original jurisdiction of the federal courts is removable the defendant in that ac law; because the action is based on federal brought tion if the action could have been merely does not anticipate a federal de place. in in federal court the first See fense. See Franchise Tax Bd. v. Con Fidelity White v. United States & Guar Trust, struction Laborers Co., ‍‌‌​‌​‌​​​‌​​‌​‌​‌​‌​​​‌​​‌‌‌​‌​‌​​‌‌​‌‌​‌​‌‌​​‌‌‍(1st Cir.1966); Vacation su anty 356 F.2d 746 pra, 19; at 103 S.Ct. 2851 and n. Illinois ex Indemnity Accident & Co. v. Hartford Shaw, (8th Co., Cir.1959). rel. Barra v. Archer Daniels 273 F.2d Midland 939-40; suppose supra, 704 F.2d prospective For defendant at Wisconsin v. suit, (7th federal-question preferring Baker, a a 1329-30 Cir. could It is true that the Sheltons have 1983); Triple-A & Co. v. E. Edelmann brought declaratory judgment a action Cir. Specialty the under against Indiana’s 1937). potential a Otherwise Act, Declaratory Ind. Judgment Code right proceed plaintiffs impede a could §§ govern- seq., 34-4-10-1 which the et a de- simply bringing in federal court they argue ment could And have removed. against in state claratory judgment him indepen- that must be therefore their claim court first. Tommy’s, dent of otherwise the because section Although requirement the government’s right remove was defeated separate independent the that simply by bring their their decision to de- original federal courts’ claim the be within claratory third-party a judgment action as jurisdiction was satisfied here because thus separate action rather But than a suit. the the the claim was founded on Sheltons’ Sheltons, choice was not a real one for the Act, Recоvery language other Medical Care consolidating object because their the a that third- creates doubt against two claims them would not have The can ever remove. party defendants separate by filing been attained suit indepen- separate of a speaks statute against one And if of the claimants. the “joined” with nonremovable govern- dent claim Sheltons a suit the had filed such suit, claim, third-party only claim ment could that and the Sheltons’ have removed Thus, Tommy’s and not well. not joined as against the States was not United 1441(c), language the of section but also to, with, antagonistic the rather was but federalism, militate considerations of (Tommy’s tort claim state nonremovable against To allow removal of an removal. Sheltons). Moreovеr, law the claim third-party entire suit of a on the basis third-party the separate, while Sheltons’ claim is to the federal an bring into court “independent,” a word claim does not seem part action the is not within main of which significance empha- independent is whose original jurisdiction, is that court’s Casualty sized in American Fire & Co. expense enlarge thus to federal at the 534, 539, Finn, 71 S.Ct. 341 U.S. way. in rather a dramatic state (1951). It is better as L.Ed. 702 described argument reject We therefore failed, parasitic. Tommy’s claim If complaint usually can third-party since a be moot; complaint third-party would be is, (and, if it separate filed as can longer any government would no have removed), removal of not to allow third- Sheltons, from the to recover power party actions mаke would therefore the Sheltons have no rea- arbitrary remove turn on differences liability. son to fear double third-party procedure. If a action is dependence third-party of the claim The 1441(c) the removed under section whole Tommy’s not A on claim is accidental. federal case is removed to the which usually third-party complaint is conditional third-party true claim is is not where main Therefore, claim. The the success action. separate filed as third-party claim not most common is a claim in the second but allow removal is, arbitrary. indemnity, that should first case (third-party plaintiff) the defendant be held It is not a sufficient answer plaintiff, third-party liable to the de- 1441(c) court to allows the federal fendant must reimburse defendant for the action to remand non- is removed plaintiff’s satisfying judg- the cost of parts If to the state court. See, e.g., Fidelity Deposit & Co. v. ment. here, purpose had been the whole done Falls, City Sheboygan 713 F.2d 1261 action—to coordinate the (7th Cir.1983). third-party claim in this government’s Sheltons suit case, though indemnity, claim for not a Tommy’s with suit them—would origi- dependent Maybe why on the claim in the that is no less have been defeated. Tommy’s judge the district denied motion nal action. Moreover, pen plies remand. fact that Tommy would not have been jurisdiction is discretionary dent has not join against allowed to his claim the Shel- years persuaded interpret recent courts to tons to the suit the United States. But jurisdiction broadly. (maybe A cousin removal had the same effect as if he had brother) concеpt of jurisdictional implic dispute done that. The between the United itly invoked the district court in this Sheltons became the handle pendent party jurisdiction, case is the form asserting for over Tom- pendent jurisdiction in party of my’s claim the Sheltons although pendent parties claim is not one of the that claim was not within the federal dis- Although pendent party to the main claim. original trict jurisdiction. court’s (see, In re Oil We jurisdiction is e.g., not dead question have treated the whether Cadiz, Spill by Amoco 909, 699 F.2d 913— third-party defendants can remove under (7th Cir.1983); Joiner v. M. Diamond as one impression, of first Co., 1035, Dulling (5th 677 F.2d 1040-41 it as indeed is in this court. There is and the Ben-Hur Cir.1982), case, discussed disagreement on question among other infra), it of neither is in the best health. commentators, circuits. The who uniform Howard, See, 1, Aldinger e.g., U.S. ly third-party conclude that defendants can 14-15, 2413, 2420, 96 S.Ct. 49 L.Ed.2d 276 1441(c), not remove under point out Hixon v. Sherwin-Williams (1976); (for that most decisions so hold a recent supra, 1008-09; Marcano v. at 671 F.2d compilation and exhaustive of the decisions Sales, Chrysler-Ply Northwestern mouth ‍‌‌​‌​‌​​​‌​​‌​‌​‌​‌​​​‌​​‌‌‌​‌​‌​​‌‌​‌‌​‌​‌‌​​‌‌‍pro and see Ford Motor Credit Co. v. con Inc., 595, (N.D.Ill.1982), F.Supp. 604-05 Inc., Aaron-Lincoln Mercury, F.Supp. Bern very our recent discussion 1108, (N.D.Ill.1983)). 1110 nn. 6 and 8 But Co., supra, stein v. Lind-Waldock & those decisions are all district court deci F.2d at 187. But even warmly welcom sions; appeals and several court of deci ing pendent of party jurisdiction view sions, e.g., Engineers, Carl Heck Inc. v. Tommy, plaintiff, not have let Jury, LaFourche Parish Police graft claim his law Shel (5th Cir.1980), 135-36 permitted have the government’s tons onto federal court removal third-party even when the go them. We dо not so far closely was as tied to main claim as it suggest pendent toas that the doctrine of was in case. this See 1A Moore’s Federal plaintiffs parties can never be used to add (2d 1983); Practice ed. Tí0.163[4. 6]— Supreme Tribe Ben-Hur to a case. § Cooper, supra, Wright, Miller & at Cauble, U.S. S.Ct. 643-45; pp. (1983 id. pp. at 235-36 (1921), 65 L.Ed. 673 held in a class Annot., Supp.); 8 A.L.R. Fed. 708 citizenship action the of the unnamed class contrary are So numerous district court determining members irrelevant decisions, however, that arewe entitled to requirement complete whether the diver regard the circuits themselves as in conflict sity satisfied; citizenship ef question. Gressman, on the Cf. & Stern law, Ben-Hur (assuming good fect is still Supreme Court Practice 278-79 and n. 43 Currie, Pendent proposition questioned in 1978). ed. Parties, (1978)) 45 U.Chi.L.Rev. 762-64 Although satisfied that in the broad run is to claims allow claimants over whose cases, one, third-party including original juris federal court does have (that defendant cannot remove the ride piggyback diction to a claim 1441(c), we case under section hesitate to plaintiff) the named over which does. adopt a universal and exceptional; general, pendent absolute rule But this is effect; particular recognized shall party jurisdiction, to the extent we consider all, ought exception allows whether there to be an at defendants to added. rule, Consistently Charles general with the the United States. The fact that 42 U.S.C. Service, D. Bonanno Inc. v. McCar 2651(b)(2) Linen allows the United States to sue thy, 6-10, supra, clearly rights 708 F.2d at im- in federal court to enforce its under that, mistaking the intent behind that if we are Recovery Act Medical Care 1441(c)Congress easily can correct right to moreover, has a the United States originally amending the Con by error statute. in federal whether our proceed removal, things cases in which its important in almost all by gress or has more §§ 1345, see, e.g., 28 party, correcting inconsequential U.S.C. er agenda it is than 1346, 1442, 1444, 2410, argues for constru- statutory interpretation. Nor will rors of rights 1441(c) give greater to it ing section proposition invoke the that the current we third-party other defend- removal than narrowly must be con removal statutes 1441(c) provides a nothing in ants. But to cut they were intended strued because privileges to granting special handhold for proposi right removal. This back on the can find And since we the United States. See, e.g., many in cases. repeаted tion is remove where it tried to previous no case Sheets, Corp. v. Oil & Gas Shamrock in which it 1441 an action under section 868, 871, L.Ed. U.S. S.Ct. defendant, third-party we cannot be- was a (1941); Illinois v. Kerr-McGee Chem. seriously interests will be lieve that its (7th Cir.), cert. Corp., 677 F.2d except by to it from impaired our failure opinions, denied with 459 U.S. 1441(c). Cf. Mur- the limitations of section S.Ct. 74 L.Ed.2d 618 But as its (5th 103, 106-07 Murray, 621 F.2d ray v. very clearly explained basis has never been Cir.1980). Indeed, govern- so little is the leery applying are it to this new we having litigate an about to ment concerned context where it is the United States— in claim it occasional traditionally enjoys access to the fed right un- court without a of removal litigate eral courts to claims 1441(c) case, argu- in far from der that arguing interpreta it—that is for a flexible having ing right, it confessеs to for such a tion. What is true is that in 1887 and 1948 Tommy’s to feder- removing action erred Congress right cut back on the broad to course it has an incentive al court. Of removal that it had created in 1875 in the keep make this concession in order its War, wake of the Civil and that section alive; hopes it claim the Sheltons be, is-—or at least was intended to Tommy’s if we order dismissal though may we have seen that the intent do the against the Sheltons we will claim restricting have miscarried—one of the en (an discussed with its claim issue same See, e.g., actments. Greenshields War next) in state and allow to start over Corp., ren Petroleum unlikely merely But it is court. Cir.1957). why But we do not understand prevailing on a enhance its chances of interpretation different standards of should worth a few thousand dollars applied previous to statutes be that restrict procedural would renounce a statutory rights and to statutes create important that was to it. right expand rights; requires or a maxim that the restrictive feature of the new statute to that section Although we think broadly merely be construed risks overcor by third- authorize removal does not rection. general or the Unit defendants party believe that As we nevertheless try shall not particular, we States ed had no to remove the United they than things for ourselves easier make court, the dis Tommy’s to federal specific re by arguing that the should judgment Thomas v. Shel §§ trict court’s 1442 and in 28 U.S.C. provisions moval the case remand must be vacated and ton States, agen relating the United court with instructions to ed to the district Congress ciеs, and its officers show court. But we can it to the state remand in a like removal case rejected explicitly judg thereby the merits not avoid argument not a helpful but This is this. in United States v. sure, ment for the Sheltons can be did Congress, we good one. incontestably That action it Shelton. like this when think about cases jurisdiction, and statutes, the district court’s no such within because passed these that consolidation reject argument argue we arisen. Nor will we case had ever merged indissolubly the two actions expressly condition, so that not refer to the proba- jurisdictional grounds bly dismissal of one on the lessee has compensated been else- where in required assuming dismissal of the other. In the the lease for the risk of the condition. argument that past put has been forwаrd opposite purpose allowing for the of a fed- exception But is there an to jurisdiction eral court to exercise over a principle; though subject it is not the jurisdiction case not its the within because any reported of Indiana case it makes such had case been consolidated with another uncontroversially good sense, being plainly that case is within its has —and implied by reasoning the underlying the uniformly See, rejected. e.g., been McKen- principle, that we assume the Indiana States, (5th zie v. United adopt courts if would it the occasion arose. Cir.1982). (Indeed, the defendants make The lessor is liable if the dangerous condi argument attempting here in pre- the to but, tion is known to him as he knows or judgment the them in serve for v. Thomas know, has reason to not to the lessee. See Shelton.) deprive Whether used to the (Second) 358(1) Restatement of Torts jurisdiction they courts of the have (1965). exception might This be inapplica given jurisdic- been or to confer on them a to licensee, ble a lessee’s or a sublessee’s they given, that tion have not been the as distinct from the ‍‌‌​‌​‌​​​‌​​‌​‌​‌​‌​​​‌​​‌‌‌​‌​‌​​‌‌​‌‌​‌​‌‌​​‌‌‍lessee or his invitee argument practical ground which no sublessee), (including the but we need not —for has been advanced and which has it about decide As judge that. the district found on metaphysical an abstract and even air—is facts, undisputed silage auger the Sheltons’ Moreover, unconvincing. accepted if it 80-foot-long an implement screw-like that greatly undermine the limitations on both was obvious obviously dangerous.’ pendent jurisdiсtion. Compare Electric, Austgen’s Coffman Inc., 437 N.E.2d (Ind.App.1982), ground The the district boy where a 12-year-old injured was —also judgment court’s for the Sheltons Unit an auger our recent decision in —and ed States v. Shelton facts Mfg. Estrada v. Schmutz alleged by Tommy repeated in the (7th Cir.1984). There suggestion is no government’s complaint did not state danger that the inhered in some latent de cause action under Indiana tort law. auger. danger fect the Sheltons’ duty (the Under that law the lessor itself, auger operated inwas when for Sheltons) sublessee, to owes as here a or purpose designed. for which had been (Tommy), greater sublessee’s licensee nois Tommy auger does And not that the duty than lessor owes lessee. anwas attractive nuisance. Wilson, Great Atlantic & Pac. Tea v.Co. correctly district Since the court found (Ind.App.1980). 408 N.E.2d This tort against Sheltons committed no sense; perfectly good makes otherwise the Tommy, judgment in favor the Shel- enlarge lessee could tort lessor’s liabili tons in United af- Shelton is ty unpredictable by letting an just to extent judgment firmed. But the in favor of the many people premises. use the leased Sheltons in Thomas v. Shelton is vacated Also, under to duty Indiana law the lessor’s with directions to remand the case eliminating the lessee does not extend to where can continue dangerous premises condition on the leased pursue his tort claim the Sheltons. expressly agrees so unless the lessor to do No costs in this court. (see id.), suggested which is not here. This (and too a reasonable rule would be Part, Part, Affirmed Vacated event, binding рrovided in any on us we did Remanded. the Supreme not doubt that Court of Indi SWYGERT, Judge, Senior concur- Circuit adopt ana would it if the occasion to do so ring judgment. in the arose). agrees The rent lessee pay adjusted compensate any him will be agree disposition While I with the of this condition; if dangerous appeal so the lease I must majority, does reached statute qualifying language into the majority insert aspect of the from one dissent Ford Motor by Congress. if not strong placed inference there opinion: citing Credit, third-party defendants supra, holding F.Supp. at direct § 1441(c) Railway, never remove under U.S.C. Georgia can v. Central Gamble (M.D.Ala.), rev’d on F.Supp. Cir.1973). grounds, other 486 F.2d 781 the ma placid discourse of Beneath the depriv- Judge Marshall also concluded lies оne court jority on this what issue of its ing luxuriat[ing] in a riot as a “field described Sonnabend, the fundamental uncertainty.” Harper v. removal would subvert ous 594, (S.D.N.Y.1960). An F.Supp. congressional policy al- 182 595 and constitutional there is an court noted that other district of fo- lowing certain defendants a choice authority the split “irreconcilable rum; question no real that a and there is may third-party re question of whether invol- third-party defendant who has been Kahn, 398, F.Supp. Soper v. 568 move.” dragged into court is not a defend- untarily (D.Md.1983). See Ford Motor Credit 400 meaning of section 1441. ant within the Inc., Mercury, Co., Inc. v. Aaron-Lincoln Credit, supra, 563 F.Supp. Ford Motor at 1108, (N.D.Ill. F.Supp. 1110 nn. 6 & 8 563 plaintiffs fo- original The choice of 1113. 1983) held a (compiling cases- that have remanding protected by rum can still be re third-party defendant can or cannot Id. at 1114-15. original the action. move). origi- replies remanding the majority addressed Only one federal circuit has frustrate the Sheltons’ nal action would issue; twice held this the Fifth Circuit has case in one trying interest in the entire may remove third-party that a defendant first, is twofold: Con- My response court. provided requirements section the pro- at gress adopted policy aimed has Corp. are met. Marsh Investment 1441(c) forum, and to the tecting parties’ choices of 583, Langford, Cir. the policy interferes with extent nom. Pontchar 1981), cert. denied sub the joinder, interest then defendant’s Investment Bank v. Marsh train State prop- a task balancing of these interests is Corp., 454 U.S. 102 S.Ct. Congress, not erly performed by Engineers, Heck (1982); Carl L.Ed.2d 319 second, courts; circumstances those Jury, Police Inc. v. Parish Lafourche some would suffer where the defendant Heck En (5th Cir.1980). In Carl F.2d 133 harm, district court could extraordinary that, gineers the court held third-par if the to remand and refuse exercise its discretion ty complaint indepen separate stated a and are original action. Such instances which, upon if alone dent claim sued could Similarly, no interest likely to rare. brought properly in federal have been by allowing economy prejudiced judicial re third-party defendant could removal, the two claims by since definition Id. at 135-36. move. independent and separate and must be recently discussed in an This issue was duplication of effort should be therefore by Judge Prentice H. opinion exhaustive minimal. Illi- of the Northern District of Marshall majority relies оn the opinion, In its Credit, supra, Motor nois. Ford distinguished commentators on most two Judge 1110-17. Marshall con- F.Supp. at courts, conclude that who both third-party complaint cluded where may remove. third-party defendants never claim which separate and distinct stated Federal Miller, Wright, Cooper, and sued on removable if it were would be and Procedure: Civil Practice joined with an other- alone and which was (1976 Ringle, 1A Supp.); Moore & & claim, third-party de- wise non-removable Practice Moore’s Federal 11110.163[4.-6] To construe section fendant could remove. respect, I be- With all due joined by the to include claims 0.167[10]. reasoned, misplaced. would, lieve their concerns are plaintiff Judge Marshall give Both commentators three reasons

justifying third-party their cоnclusion that Rodney McKINNEY, first, third-par- cannot remove: defendants Petitioner-Appellant, ty defendants are not defendants within 1441; second, meaning sec- ISRAEL, Respondent-Appellee. Thomas 1441(e) joined tion is limited to claims third, No. plaintiff; third-party 83-2409. sufficiently claim is not unrelated to the United Appeals, States Court of separate indepen- main claim be a Seventh Circuit. above, dent argu- claim. As discussed Argued Feb. 1984. ment defendant is not a specious, conceptually Ford Decided July 1984. Credit, supra, F.Supp. Motor at ignores protecting the interest third-party defendants’ choice of forum. above, limiting

As also noted to claims plaintiffs raised inserts language

into the statute qualifying by Congress.

placed there The third rea- prohibiting by third-par-

son for removal

ty justification barring is no removing

all defendants from provides

because section itself will not if

removal be allowed the remova- independent; claim not separate

ble

removal should not be denied in those ‍‌‌​‌​‌​​​‌​​‌​‌​‌​‌​​​‌​​‌‌‌​‌​‌​​‌‌​‌‌​‌​‌‌​​‌‌‍situ- independent separate

ations where a simply many

claim does exist because

other eases it does not. presents

This case in fact a situation properly

where a construed section operate to bar removal. For the majority,

reasons stated I do not

believe Sheltons’ claim separate independent

United States is

from Thomas’ the Sheltons. reason, although disagree

For I

strongly proposition with the third-

party defendant can never remove under 1441(c),I judgment concur in the

this case.

Case Details

Case Name: Tommy Duane Thomas, Jr. And Marilyn Kay Terrell, His Parent and Guardian, and United States of America v. Gerald Shelton and Barbara Shelton

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 6, 1984

Citation: 740 F.2d 478

Docket Number: 83-1666, 83-1951

Court Abbreviation: 7th Cir.