Jane Pettitt v. Boeing Company , 606 F.3d 340 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3204
JANE W YNNE P ETTITT and
E LIZABETH W YNNE D AVIES, Co-Executrixes
of the Estate of S ARAH W YNNE S TEWART,
deceased, et al.,
Plaintiffs-Appellees,
v.
T HE B OEING C O ., a corporation, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 03709—Samuel Der-Yeghiayan, Judge.
A RGUED M ARCH 29, 2009—D ECIDED M AY 17, 2010
Before C UDAHY and K ANNE, Circuit Judges, and D ARRAH,
District Judge. 1
1
Honorable John W. Darrah, United States District Judge
for the Northern District of Illinois, is sitting by designation.
2 No. 09-3204
C UDAHY, Circuit Judge. The present case arises out of a
tragic accident that occurred on May 5, 2007, when in
the early morning hours a Boeing 737-800 aircraft crashed
shortly after take-off in Cameroon. All 114 people on
board died. Two years later, six wrongful-death and
survival actions were filed in Cook County Circuit Court,
but were promptly removed to the United States
District Court for the Northern District of Illinois on
June 19, 2009. Removal was effected under the
Multiparty, Multiforum Trial Jurisdiction Act (MMTJA),
which, subject to certain conditions, grants district
courts original jurisdiction over civil actions arising from
a single accident involving at least 75 fatalities, where
minimal diversity exists among the adverse parties. 28
U.S.C. § 1369. Three of the six cases removed under
the MMTJA were voluntarily dismissed. The three re-
maining actions were assigned to the Hon. Samuel Der-
Yeghiayan,2 the Hon. Milton I. Shadur 3 and the Hon.
Wayne R. Andersen.4
A primary purpose of the MMTJA was to consolidate
multiple cases arising out of a single disaster. See H.R.
Rep. No. 106-276, at 200 (2002) (Conf. Rep.); Wallace v. La.
Citizens Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir. 2006);
Case v. ANPAC La. Ins. Co., 466 F. Supp. 2d 781, 794 (E.D.
La. 2006); Passa v. Derderian, 308 F. Supp. 2d 43, 53 (D.R.I.
2004). Consistent with that purpose, defendant, The
2
This is the case that is presently before us on appeal.
3
Claisse v. Boeing Co., No. 09 CV 3722.
4
Patricia v. Boeing Co., No. 09 CV 3728.
No. 09-3204 3
Boeing Company, filed a motion for reassignment and
consolidation on July 6, 2009, in the present case under
Local Rule 40.4 of the Northern District of Illinois. That
rule enables a defendant to file such a motion with the
judge before whom the lowest-numbered case of the
claimed related set of cases is pending. On July 8, 2009,
the plaintiffs consented to Boeing’s pending motion for
consolidation and reassignment. Unfortunately, the
district court did not rule on that motion.
Instead, on August 20, 2009, approximately two
months after removal, Judge Der-Yeghiayan sua sponte
remanded the case to the Circuit Court of Cook County.
He reasoned that the “record does not reflect that all
the defendants consented in a timely fashion for the
removal before the case was removed to Federal Court.”
Relying on Northern Illinois Gas Co. v. Airco Indus. Gases, A
Division of Airco, Inc., 676 F.2d 270, 272 (7th Cir. 1982), the
district court concluded that the removal to federal
court had been defective, since “[a]ll defendants must
join in a removal petition in order to effect removal.” As
a corollary, all pending motions were “stricken as
moot.” The defendants appeal this order, which the
plaintiffs have chosen not to defend. Since the district
court did not have the power to enter such an order, we
vacate it. Before we explain the basis for this decision,
however, we must address the question of jurisdiction.
A casual reading of Section 1447(d) might suggest that
we lack jurisdiction to consider the district court’s order.
This provision states that an “order remanding a case
to the State court from which it was removed is not
4 No. 09-3204
reviewable on appeal or otherwise, except that an order
remanding a case to the State court from which it was
removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d)
(emphasis added). In the present case, the district court
remanded under Section 1447(c) and not Section 1443.
However, we have previously explained that appellate
review is possible where the district court’s remand
“falls outside the authority of § 1447(c).” In re Continental
Cas., Co., 29 F.3d 292, 294 (7th Cir. 1994). We can “decide
whether a district court has the power to do what it
did, although we cannot examine whether a particular
exercise of power was proper.” Id. Thus, the 28 U.S.C.
§ 1447(d) prohibition on appellate-court review of
remand orders does not apply to remand orders that
were outside the district court’s statutory power under
28 U.S.C. § 1447(c).
In the present case, the district court lacked statutory
power to enter a remand order. Even if the district court
were correct that a defect in removal had occurred, this
is merely a procedural defect. Midlock v. Apple Vacations
West, Inc., 406 F.3d 453, 455 (7th Cir. 2005); McMahon v.
Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir. 1998).
Such defects are waived if a party does not bring a timely
motion to remand the case to state court. 28 U.S.C. §
1447(c) (requiring that a motion to remand “be made
within 30 days after the filing of the notice of removal
under section 1446(a)”). We have previously held that
“after the 30 days have expired a district judge may not
remand on its own motion for non-jurisdictional prob-
lems.” Continental Cas. Co., 29 F.3d at 295. In the present
No. 09-3204 5
case, no party filed a motion within 30 days. As a result,
even if the “defect in the removal process could have
justified a remand . . . because 30 days passed without
protest—and the problem does not imperil subject-matter
jurisdiction—the case is in federal court to stay.” Doe v.
GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003); see also In re
Continental Cas. Co., 29 F.3d at 294-95; Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 198-200 (4th Cir. 2008);
Whole Health Chiropractic & Wellness, Inc. v. Humana Med.
Plan, Inc., 254 F.3d 1317, 1318-21 (11th Cir. 2001); Page v.
City of Southfield, 45 F.3d 128, 132-34 (6th Cir. 1995); Maniar
v. FDIC, 979 F.2d 782, 785-86 (9th Cir. 1992); FDIC v. Loyd,
955 F.2d 316, 321-22 (5th Cir. 1992); Air-Shields, Inc. v.
Fullam, 891 F.2d 63, 63-65 (3d Cir. 1989). Since any proce-
dural defect was waived, the district court lacked power to
remand the case on that basis.
Although the validity of the removal is not relevant
for jurisdictional reasons to our disposition of the present
appeal, it bears noting that no procedural defects were
in fact present. It is indeed true that valid removal gener-
ally requires the unanimous consent of all defendants. See
Wolf v. Kennelly, 574 F.3d 406, 409-10 (7th Cir. 2009). This
general rule follows from the language of 28 U.S.C.
§ 1441(a), which provides that “[e]xcept 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.” (emphasis
added). We have interpreted the italicized language
to mean that all defendants must consent to removal.
See Doe, 347 F.3d at 657. However, the present case was
6 No. 09-3204
not removed under 28 U.S.C. § 1441(a); it was removed
under the MMTJA (28 U.S.C. § 1369). Section 1441(e)(1)
provides that “a defendant . . . may remove . . . if the
action could have been brought . . . under section 1369.”
(emphasis added).
In summation, we have jurisdiction to consider whether
the district court had power to order remand and we
conclude that it did not. We also observe that the district
court was in fact mistaken in believing that there was
a defect in removal.
This leaves us with just one more difficulty. At oral
argument, counsel instructed us on the disarrayed
nature of the underlying proceedings, given that three
different lawsuits based on the same accident and pur-
portedly involving the same legal issues are being
litigated in front of three different judges. To complicate
matters further, the case presently before Judge
Andersen has been stayed pending the outcome of
the current appeal, while Judge Shadur has denied the
defendants’ request for a stay. Counsel advised us at oral
argument that we could ameliorate the situation on
remand by consolidating the three actions. He sug-
gested that our Circuit Rule 36 might enable us to do so,
though he conceded that he was unable to point to any
precedent that supports his contention.
Our search of prior case law has been no more fruitful,
though we would be hesitant to order consolidation
regardless, since two of the three relevant cases are not
now before us and we do not have the benefit of up-to-date
briefing and argument from all affected parties on the
No. 09-3204 7
matter. But even if we were of the opinion that Rule 36
gave us the power to consolidate the three relevant
cases, we would see no reason to exercise that authority
here. The Northern District of Illinois has a mechanism
in place for dealing with such situations. On remand, the
present case will again be before Judge Der-Yeghiayan
and the Rule 40.4 motion filed by defendant, The Boeing
Co., on July 8, 2009, and consented to by the plaintiffs
two days later, will remain pending. On remand, Judge
Der-Yeghiayan should promptly address this motion
and, if necessary, consult with Judges Shadur and
Andersen to determine whether reassignment is appro-
priate.5
5
Of course, a complicating fact is that Judge Shadur has already
entertained and denied a Rule 40.4 motion filed by the defen-
dants, as the case pending before him became the lowest-
numbered one by virtue of Judge Der-Yeghiayan’s improper
remand order. We do not know the basis for this determination,
as the docket entry merely indicates that the court denied the
motion for “reasons stated at oral argument.” However, it would
seem that Judge Shadur found the cases at least somewhat
related, since it ordered that discovery conducted in front of
Judge Andersen constitute discovery for the purpose of the
action pending before him.
There may be concern that the doctrine of collateral estoppel
affects the pending Rule 40.4 motion before Judge Der-
Yeghiayan, since Boeing had a full and fair opportunity to argue
just such a motion in another forum (before Judge Shadur). It
might be possible to litigate an issue for purposes of collateral
estoppel via a motion to consolidate. See, e.g., Burstein v. Rumball,
(continued...)
8 No. 09-3204
For the foregoing reasons, the district court’s remand
order of August 20, 2009 is V ACATED and the case is
remanded to the district court for proceedings consistent
with this opinion. The district court should endeavor
promptly to rule upon the pending Rule 40.4 motion to
consolidate and reassign, which was filed on July 6, 2009.
In considering the merits of this motion, we would encour-
age the district court to be mindful of the benefits of
consolidation envisioned in the MMTJA.
5
(...continued)
297 Fed. App’x. 918, 920 (11th Cir. 2008). However, collateral
estoppel applies only to a court’s determination of fact that is
necessary to its judgment. See Harrell v. U.S. Postal Service, 445
F.3d 913, 921 (7th Cir. 2006). Judge Shadur’s discretionary ruling
not to grant a Rule 40.4 motion could have been founded on a
variety of determinations, many of which would have no
bearing on a subsequent motion to reassign before Judge Der-
Yeghiayan. Cf. Jennings v. Roscrow, 1987 WL 11341, at * 3 (N.D.
Ill. May 22, 1987).
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