In this case we must decide an important question of federaljurisdiction — whether a third party defendant may remove anaction filed in state court to this court when the originalaction is not removable.
On June 25, 1981, plaintiff Ford Motor Credit Corp. ("FMC")filed a complaint against defendants-third party plaintiffsAaron-Lincoln Mercury, Inc. ("Aaron-Lincoln"), ElliottDulberger ("Dulberger") and Arthur Nelson ("Nelson")1 inthe Circuit Court of McHenry County, Illinois. FMC sought tohold Aaron-Lincoln liable on a financing contract, andDulberger and Nelson liable on their guarantees of the debtsAaron-Lincoln owed on the contract. Since the defendants inthis action were all citizens of Illinois,2 they could notremove the action to this court. See 28 U.S.C. § 1441(b)(1976).
On July 29, 1982, the defendants in the state action fileda second amended answer to the complaint which contained acounterclaim against FMC and a third party complaint againstFord Motor Co. ("Ford")3 In the counterclaim and thirdparty complaint, it was alleged that Ford had induced thefranchisees to purchase a Ford dealership franchise by meansof false and misleading statements, and that FMC had not livedup to its promise to provide the franchisees with adequatefinancing. It was also alleged that Ford had violated theIllinois Franchise Disclosure Act when selling the franchise.The third party complaint was served on Ford that day, and onAugust 27, 1982 it filed a timely petition to remove the caseto this court under 28 U.S.C. § 1446(b) (1976).
The parties have not raised the issue of whether this caseis removable under 28 U.S.C. § 1441 (1976).4 However, sincethe question goes to the court's subject matter jurisdictionover the case, the question can be raised on the court's ownmotion. SeeFed.R.Civ.P. 12(b)(1). Research discloses that there issubstantial doubt as to whether a third party defendant mayremove an otherwise nonremovable action.5 Many courts haveheld that there is no removal jurisdiction in thissituation.6 This is also the position taken by the twoleading commentators.7 Other courts, including the onlycourt of appeals to decide the question, have held that athird party defendant may remove a "separate and independentclaim" within the meaning of 28 U.S.C. § 1441(c) (1976).8
Removal in this case is predicated upon 28 U.S.C. § 1441(c)(1976). Therefore, we turn first to the question whether thiscase fits into that section.
The statute provides,
Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
28 U.S.C. § 1441(c) (1976). The statutory language raises twoquestions: has Ford removed "a separate and independent claimor cause of action" and is its claim "joined with one or moreotherwise non-removable claims or causes of action"? Weexamine both questions in turn.
The Supreme Court has construed § 1441(c)'s requirement of aseparate and independent claim as necessitating a claim notbased on the same wrongful conduct as that which gave rise tothe non-removable claims. See American Fire & Casualty Co. v.Finn, 341 U.S. 6, 11-16, 71 S.Ct. 534, 538-541, 95 L.Ed. 702(1951).9 Where recovery in the allegedly removable claim isdependent on the result in the non-removable claim, the claimsare not "separate and independent" within the meaning of §1441(c).10
Here, FMC seeks to recover money owed it. In thefranchisees' action against Ford, they attack Ford's conductin inducing the franchisees to purchase the dealership. Thecourse of conduct by which Ford induced the franchisees to buythe dealership was entirely separate from FMC's conduct inloaning the franchisees money.11 Ford may well havemisrepresented facts and violated the Illinois FranchiseDisclosure Act's provisions but that in no way operates as adefense to FMC's claim for money owed it. The two claims arebased on entirely separate contractual relationships — onebetween the franchisees and their franchisor, Ford, and anotherbetween the franchisees and their finance company, FMC. Ford'sliability is in no way dependent on the result in the actionbetween FMC and the franchisees.
Ted Lokey Real Estate Co. v. Gentry, 336 F. Supp. 741(N.D.Tex. 1972) is similar to this case. There the plaintiffsued on a contractual warranty, and the defendant filed a thirdparty action alleging that its breach of the warranty wascaused by the failure of the third party defendant to live upto a separate contract it had entered with the defendant. Thecourt held that the third party action was a separate andindependent claim, since it was premised on a separatecontractual relationship from that between the plaintiff anddefendant. The same is true here. The third party actionagainst Ford is based on a separate relationship and adifferent course of allegedly wrongful conduct — Ford'sinducements to get the franchisees to buy the dealership —than is the original action against the franchisees which isbased on FMC's financing contract with them. The "separate andindependent claim" requirement of § 1441(c) is satisfied here.
For removal to be proper under § 1441(c), it must also be thecase that the third party action be "joined with one or moreotherwise non-removable claims." A number of courts haveconcluded that this language refers only to claims "joined" bythe plaintiff, so that a removable claim added to the case by athird party plaintiff fails to satisfy the statute.12However,nothing in the statute compels this construction.
The word "join" is defined "to become united, associated or combined" or "to bring or put together." [citing dictionaries] This Court sees no reason to apply any other meaning to the word "joined" in its statutory sense. Had Congress intended that the statute be construed to apply only to separate causes of action "joined" by the plaintiff, it could easily have added the words "by the plaintiff" to the statute. The third party practice [rules] . . . contemplate the joining, combining and associating of two causes of action for the purpose of trial. That practice facilitates the trial of multiple issues wherein several liability of parties may more easily be determined in one cause, and it, therefore, fulfills the national purpose of facilitating judicial procedure by avoiding duplication of effort and diminishing multiplicity of suits so that full justice may be done as simply and expeditiously as possible. This Court is, therefore, of the opinion that a third-party procedure is a procedure which is "joined" with the original proceeding for determination by a court within the meaning of the term "joined" as it appears in § 1441(c).
Gamble v. Central of Georgia Railway Co., 356 F. Supp. 324, 330(M.D.Ala.), rev'd on other grounds, 486 F.2d 781 (5th Cir.1973). Construing § 1441(c) to include only claims joined bythe plaintiff inserts qualifying language into the statute notplaced there by Congress. A separate and independent claimagainst a third party defendant placed into a single lawsuitwith the claims brought by the original plaintiff is as much"joined" to those claims as any other type of claim, and may beremoved under § 1441(c). Carl Heck Engineers, Inc. v. LafourcheParish Police Jury, 622 F.2d 133, 136 (5th Cir. 1980).
Determining that the third party complaint presents a"separate and independent claim" that is "joined" to anon-removable claim within the meaning of § 1441(c) does notend the analysis, however.13 It must still be determinedwhether that separate and independent claim "would be removableif sued on alone" within the meaning of the statute. For thatwe must look to the other subsections of § 1441.14
The general rule on removability of actions is stated in28 U.S.C. § 1441(a) (1976).
Except 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, to the district court of the United States for the district and division embracing the place where such action is pending.
Some courts have held that a third party defendant such asFord is not a "defendant"within the meaning of the statute.15 If Congress intended"defendant" to include only defendants in the original stateaction, Ford would not be eligible to remove under § 1441(a).
The starting point for examining the meaning of the term"defendant" in the statute, which is a question of federal lawand does not turn on how the party seeking removal ischaracterized under state law, see Chicago, Rock Island &Pacific Railroad Co. v. Stude, 346 U.S. 574, 579-80, 74 S.Ct.290, 294-295, 98 L.Ed. 317 (1954), is West v. Aurora City, 73U.S. (6 Wall.) 139, 18 L.Ed. 819 (1867). There, the plaintifffiled a nonfederal claim in state court. The defendantresponded with a counterclaim which could have originally beenbrought in federal court. The plaintiff-counterdefendant thensought to remove. The Court held that there was no removaljurisdiction. The plaintiff, by filing the original suit, hadsubmitted himself voluntarily to the jurisdiction of the statecourt and hence did not qualify as a "defendant."16 TheCourt subsequently adhered to this view, stating that it hadbeen incorporated by Congress into the current removal statute,in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct.868, 85 L.Ed. 1214 (1941).
The rationale of West and Shamrock Oil indicate that Fordqualifies as a "defendant." Unlike the party seeking removal inWest, it had never voluntarily submitted itself to thejurisdiction of the state court. It was dragged into statecourt by service of process the same way that any other"defendant" is brought into court. Moreover, § 1441(c) arguesfor this result. Under that section, the only claim that needbe removable is the "separate and independent claim," which inthis case is the third party action against Ford. In judgingremovability, it makes sense to determine whether it is the"defendant" in the assertedly removable claim that seeksremoval. When that is done, it is clear that "Ford" is the"defendant," it is the franchisees who as plaintiffs broughtFord into the case and seek recovery against it. Ford is asmuch a defendant as if the case had been originally broughtagainst it.17 Ford has been sued in the only meaningfulsense of the word — it has been haled into court involuntarilyand must defend an action for relief against it. That makesFord a "defendant."18
There is another reason not to construe a third partydefendant as a "defendant" within the meaning of § 1441(a),however. Removal jurisdiction was designed to give parties asequential choice of forum. Plaintiffs are given the firstchoice — they decide whether to sue in state or federal court— but then the choice is left to the defendant. The plaintiffcannot change his mind and remove since only "defendants" canremove. Thus, if the action remains in state court, it isbecause one or both parties want it there.19 However, ifthird parties arepermitted to remove as "defendants" under § 1441(a), this willdefeat the choice of forum made by plaintiffs and the original"defendants" which Congress meant to protect. Third partydefendants cannot remove if this congressionally mandatedrespect for the original parties' choice of forum is to bepreserved, it is argued.20 To let the third party defendantremove is akin to permitting the "tail to wag the dog."21
This argument overlooks the interest in protecting the thirdparty defendant's choice of forum, however. If the franchiseeshad brought a separate action against Ford, before FMC hadbrought suit, Ford would have had the right to remove the caseas a "defendant." Accepting the above argument makes the thirdparty defendant's ability to obtain a federal forum turn onthe fortuity of who sues first, FMC or the franchisors.22
Moreover, by depriving the third party defendant of itsright to removal, a fundamental congressional andconstitutional policy is subverted. Had the franchisees suedFord in an original action, there would have been federaljurisdiction over the action because the parties would havebeen citizens of different states. See 28 U.S.C. § 1332 (1976).Congress, as well as the Framers of the Constitution, createddiversity jurisdiction to protect litigants from the prejudicesthey might encounter in state courts against citizens offoreign states.23 If removal is not permitted here, Ford, aforeign citizen, must defend an action brought by citizens ofIllinois in their own state courts. That is exactly thesituation where Congress and the Framers intended a litigant tohave access to a federal forum. Thus, removal is required togive effect to the federal policy of protecting out-of-statelitigants against local prejudices in the state courts.24
Thus, the original parties' choice of forum can only beprotected at the cost of sacrificing an important federalpolicy. This dilemma might require us to choose between thetwo policies. However, there is a way to protect both theoriginal choice of forum and the third party defendant's rightof access to a federal forum. That is for the court toexercise its discretion to remand the nonremovable claim underthe last clause of § 1441(c). Partial remand is ordinarily thepreferred course; in fact, every case that we have been able tofind whichhas permitted the removal of a third party action also remandsthe original claim to the state court.25 By remanding theoriginal action and retaining the third party action the courtcan protect the original parties' choice of forum whilepreserving the third party defendant's right of access to afederal forum.26 In this case, we can retain the thirdparty action against Ford, thus preserving Ford's right not tohave to defend a suit brought by an Illinois citizen in thestate courts of Illinois. Remand will not prejudice theinterests of judicial economy, since, as we noted above, thethird party action is based on a different course of conductthan is the original action, so separate trials in the stateand federal courts should not result in any duplication ofeffort.27 Thus, the policies underlying the jurisdictionalstatutes at issue are served by permitting removal in thiscase, without interfering with the original parties' choice offorum for their action, if removal is permitted.28
To be removable, this case must also satisfy 28 U.S.C. § 1441(b)(1976), which provides,
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
Since original jurisdiction over this action is founded ondiversity of citizenship, thelast sentence of § 1441(b) is applicable. Thus, we must decidewhether any of the "defendants" is a citizen of Illinois. Ifso, removal is forbidden.
The simplest argument is that since the franchisees werejoined and served as defendants in the original action broughtby FMC, there is no removal jurisdiction since the franchiseesare citizens of Illinois. However, this argument shares thedefects of the construction of "defendant" in § 1441(a) asexcluding third party defendants which we rejected above.First, the rationale of West and Shamrock Oil suggests that aparty which voluntarily submits its claim to the jurisdictionof the state courts is not a defendant. That is what thefranchisees did here — they were not compelled to bring theirthird party action as part of the case with FMC but did sovoluntarily. Second, this approach overlooks the fundamentalpurpose behind § 1441(b). Section 1441(b) excludes litigantsfrom removing actions brought in the courts of their homestates when no federal questions are involved since therationale for diversity jurisdiction is absent in such cases —litigants need not fear local prejudices against out-of-staterswhen they are haled into their own local courts. That is notthe case with Ford. It is an out-of-stater which has been haledinto the courts of Illinois to defend an action brought byIllinois citizens. The rationale for diversity jurisdiction isfully applicable to the third party claim here, and therationale for the limitation in § 1441(b) is not. In light of §1441(b)'s purpose, it makes sense to look only to the separateand independent removable claim — the third party action —and test it against the statute. It makes no sense to testFMC's claim against the franchisees under § 1441(b) since itcannot be removable anyway.
By accepting the third party claim and remanding theoriginal claim we comply fully with § 1441(b). That keeps thelawsuit against Illinois citizens in state court, whereCongress wanted it, while permitting the lawsuit against thenoncitizen defendant to be heard in a federal forum.
Some courts have held that removal under § 1441(c) based onthird party actions is prohibited by 28 U.S.C. § 1446(b)(1976). The argument begins with a line of Supreme Court caseswhich held that if an action is nonremovable when first filedin state court, it can only become removable by a voluntary actof the plaintiff.29 That principle was adopted by Congressin § 1446(b),30 which provides in pertinent part,
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty 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.
28 U.S.C. § 1446(b) (1976). Since Congress intended to adoptthe traditional rule, the "amended pleading, motion, order orother paper" must be one that has been filed by the plaintiff.Since a third party complaint is not filed by the plaintiff, itdoes not qualify as a pleading that can trigger removabilityunder § 1446(b), it is argued.31
However, once again this argument overlooks the question ofwhat is the relevant claim that must be tested under thestatute. If the relevant claim is the removable claim under§ 1441(c), then the third party complaint is filed by theplaintiff, since in that "separate and independent claim" it isthe third party plaintiff that qualifies as the plaintiff under§ 1446(b).
Moreover, the underlying purposes of § 1446(b) are notoffended by removal in this case. The old Supreme Court casesindicate that the purpose of the traditional rule is to protectplaintiff's choice of forum as long as he wants it protected.See, e.g., Great Northern R. Co. v. Alexander, 246 U.S. 276,281-82, 38 S.Ct. 237, 239-240, 62 L.Ed. 713 (1918). Removal wasimpossible unless plaintiff voluntarily made the caseremovable. However, permitting removal and then exercising ourpower to remand under § 1441(c) comports fully with thispolicy. By remanding FMC's case against the franchisees, weprotect its right under § 1446(b) not to be involuntarily haledinto federal court, while still protecting Ford's right to seeka federal forum which otherwise would be lost by thefranchisees' decision to sue Ford as a third party defendantinstead of bringing a separate action.
This case was properly removed from the Circuit Court ofMcHenry County, Illinois, pursuant to 28 U.S.C. § 1441(c)(1976).32 On the court's motion, FMC's claim againstdefendants Aaron-Lincoln, Dulberger and Nelson as well asdefendants' counterclaims against FMC are remanded to theCircuit Court of McHenry County, Illinois. All motions in theactions between FMC and Aaron-Lincoln, Dulberger and Nelson aredenied as moot. They should be presented to the state court onremand. The third party action by Aaron-Lincoln, Dulberger andNelson against Ford is retained for adjudication in this court.Prior trial schedule to stand.
1. We will collectively refer to Aaron-Lincoln, Dulbergerand Nelson as "the franchisees."
2. The petition for removal indicates that Aaron-Lincoln isan Illinois corporation with its principal place of businessin Illinois and that Dulberger and Nelson are citizens ofIllinois.
3. The petition for removal indicates that Ford is acitizen of Delaware, where it is incorporated, and Michigan,where it has its principal place of business.
4. They have mentioned it tangentially, however, in theirmemoranda on whether the case was properly removed since FMCdid not join in the removal petition. That question was mootedwhen FMC indicated its willingness to join in thepetition.
5. One distinguished jurist has written that "it is not anexaggeration to say that at least on the surface the fieldluxuriates in a riotous uncertainty." Harper v. Sonnabend,182 F. Supp. 594, 595 (S.D.N.Y. 1960).
6. See Continental Resources & Mineral Corp. v. ContinentalIns. Co., 546 F. Supp. 850 (S.D.W. Va. 1982); Knight v. HellenicLines, Ltd., 543 F. Supp. 915 (E.D.N.Y. 1982); Friddle v.Hardee's Food Systems, Inc., 534 F. Supp. 148 (W.D.Ark. 1981);Luebbe v. Presbyterian Hosp., 526 F. Supp. 1162 (S.D.N.Y. 1981);Hopkins Erecting Co. v. Briarwood Apartments, 517 F. Supp. 243(E.D.Ky. 1981); Folts v. City of Richmond, 480 F. Supp. 621, 625(E.D.Va. 1979); Avco-Aurora Industrial Bank v. Cline,459 F. Supp. 857 (D.Colo. 1978); Lowe's of Montgomery, Inc. v.Smith, 432 F. Supp. 1008 (M.D.Ala. 1977); White v. Hughes,409 F. Supp. 1005 (W.D.Tenn. 1975); Mid-State Homes, Inc. v.Swain, 331 F. Supp. 337 (W.D.Okla. 1971); Greater New York Mut.Ins. Co. v. Anchor Construction Co., 326 F. Supp. 245 (E.D.Pa.1971); Tuyagda Aluminum Prods. Corp. v. Hull Dobbs 65thInfantry Ford, Inc., 313 F. Supp. 774 (D.P.R. 1970); Fiblenskiv. Hirschback Motor Lines, Inc., 304 F. Supp. 283 (E.D.Ark.1969); Brumfield v. Stuck, 298 F. Supp. 380, 381 (W.D.Okla.1969); Fountain Park Cooperative v. Bank of America NationalTrust & Sav. Ass'n, 289 F. Supp. 150, 153-54 (C.D.Cal. 1968);Holloway v. Gamble-Skogmo, Inc., 274 F. Supp. 321 (N.D.Ill.1967); White v. Baltic Conveyor Co., 209 F. Supp. 716 (D.N.J.1962); Burlingham, Underwood, Barron, Wright & White v.Luckenbach Steamship Co., 208 F. Supp. 544 (S.D.N.Y. 1962);Dowell Div. of Dow Chemical Co. v. Ormsby, 204 F. Supp. 38(E.D.Ky. 1962); Shaver v. Arkansas-Best Freight System, Inc.,171 F. Supp. 754 (W.D.Ark. 1959); Sequoyah Feed & Supply, Co. v.Robinson, 101 F. Supp. 680 (W.D.Ark. 1951).
7. See 1A J. Moore & J. Wicker, Moore's Federal Practice ¶0.167 (1982) [hereinafter cited as J. Moore]; 14 C. Wright& A. Miller, Federal Practice and Procedure § 3724 at 643-46(1976) [hereinafter cited as C. Wright].
8. See Carl Heck Engineers v. Lafourche Parish Police Jury,622 F.2d 133 (5th Cir. 1980); Columbia Cas. Co. v. StatewideHi-Way Safety, Inc., 94 F.R.D. 182 (D.N.J. 1982); Motor VehicleCas. Co. v. Russian River C'nty Sanitation Dist., 538 F. Supp. 488 (N.D.Cal. 1981); Peturis v. Fendley, 496 F. Supp. 203(S.D.Ala. 1980); Bond v. Doig, 433 F. Supp. 243 (D.N.J. 1977);Gamble v. Central of Georgia Ry. Co., 356 F. Supp. 324(M.D.Ala.), rev'd on other grounds, 486 F.2d 781 (5th Cir.1973); Ted Lokey Real Estate Co. v. Gentry, 336 F. Supp. 741,743 (N.D.Tex. 1972); First Nat'l Bank v. Port Lavaca VendingMachines, Inc., 334 F. Supp. 375 (S.D.Tex. 1971); Coleman v. A &D Machinery Co., 298 F. Supp. 234 (E.D.Cal. 1969); Myers v.Cain, 287 F. Supp. 352 (D.Mont. 1968); Wayrynen Funeral Home,Inc. v. J.G. Link & Co., 279 F. Supp. 803 (D.Mont. 1968);Rafferty v. Frock, 135 F. Supp. 292 (D.Md. 1955); IndustrialLithographic Co. v. Mendelsohn, 119 F. Supp. 284 (D.N.J. 1954);President & Directors of Manhattan Co. v. Monogram Associates,Inc., 81 F. Supp. 739 (E.D.N.Y. 1949). See also Croy v. BuckeyeInt'l, Inc., 483 F. Supp. 402, 406-07 (D.Md. 1979). Cf. Centralof Georgia Ry. Co. v. Riegel Textile Corp., 426 F.2d 935 (5thCir. 1970) (third party action that has been severed in statecourt is removable). In McMahon v. City of Troy, 122 F. Supp. 555 (N.D.N.Y. 1954) removal was permitted, though that resultmay have been influenced by the parties' agreement that removalwas proper.
9. See also Coleman v. A & D Machinery Co., 298 F. Supp. 234,237 (E.D.Cal. 1969).
10. See Westwood Dev. Co. v. Higley, 266 F.2d 555, 558 (5thCir. 1959); Gray v. New Mexico Military Inst., 249 F.2d 28(10th Cir. 1957); Parks v. Physicians & Surgeons BuildingCorp., 324 F. Supp. 883, 885 (W.D.Okla. 1971); Hyde v. Carder,310 F. Supp. 1340 (W.D.Ky. 1970); Brumfield v. Stuck,298 F. Supp. 380, 381 (W.D.Okla. 1969); Holloway v. Gamble-Skogmo,Inc., 274 F. Supp. 321, 322-23 (N.D.Ill. 1967); Rager v.Crampes, 223 F. Supp. 346 (W.D.Ky. 1963); Harper v. Sonnabend,182 F. Supp. 594 (S.D.N.Y. 1960); Manternach v. Jones C'nty FarmServ. Co., 156 F. Supp. 574 (N.D.Iowa 1957); Schoneweather v.L.F. Richardson, Inc., 122 F. Supp. 692 (S.D.Mo. 1954).
11. Ford's allegedly wrongful course of conduct is alsoentirely separate from the conduct at issue in thecounterclaim — FMC's allegedly wrongful failure to loan thefranchisees money.
12. See Luebbe v. Presbyterian Hosp., 526 F. Supp. 1162,1164-65 (S.D.N.Y. 1981); White v. Hughes, 409 F. Supp. 1005,1007 (W.D.Tenn. 1975); United Founders Life Ins. Co. v.Blackhawk Holding Corp., 341 F. Supp. 483, 485 (E.D.Wis. 1972);Greater New York Mut. Ins. Co. v. Anchor Construction Co.,326 F. Supp. 245, 248 49 (E.D.Pa. 1971); Brumfield v. Stuck,298 F. Supp. 380, 381 (W.D.Okla. 1971); Verschell v. Fireman's FundIns. Co., 257 F. Supp. 153, 154 (S.D.N.Y. 1966); Cannon v.Goodyear Tire & Rubber Co., 241 F. Supp. 23 (E.D.S.C. 1965);Sexton v. Allday, 221 F. Supp. 169 (E.D.Ark. 1963); White v.Baltic Conveyor Co., 209 F. Supp. 716, 719-20 (D.N.J. 1962);Dowell Div. of Dow Chemical Co. v. Ormsby, 204 F. Supp. 38, 39(E.D.Ky. 1962); Shaver v. Arkansas-Best Freight System, Inc.,171 F. Supp. 754, 762-63 (W.D.Ark. 1959); Sequoyah Feed & SupplyCo. v. Robinson, 101 F. Supp. 680, 682 (W.D.Ark. 1951). See alsoMoore & VanDercreek, MultiParty, Multi-Claim Removal Problems:The Separate and Independent Claim Under Section 1441(c), 46Iowa L.Rev. 489, 509-12 (1961); Note, Federal Jurisdiction:Removal: Judicial Code Section 1441(c): Removable "Separate andIndependent Claim or Cause of Action.", 40 Calif.L.Rev. 317,324 (1952); Recent Decisions, Federal Procedure — RemovalDenied to Impleaded Party Under 28 U.S.C. § 1441(c), 51Mich.L.Rev. 115 (1952).
13. Some have argued that third party actions are notremovable because they are too "ancillary" to the main action.See, e.g., White v. Baltic Conveyor Co., 209 F. Supp. 716(D.N.J. 1962) 1A J. Moore, supra note 7, ¶ 0.167 at 418-20.Section 1441(c) is the answer to this argument. If an actionqualifies as "separate and independent" within the meaning ofthe statute, then Congress clearly has decided, in § 1441(c),that it is not too "ancillary" to qualify for removal. MotorVehicle Cas. Co. v. Russian River C'nty Sanitation Dist.,538 F. Supp. 488, 492 (N.D.Cal. 1981). Any other conclusion would bepure judicial legislation.
14. If the third party action is not removable under §1441(a) and (b), it could hardly be removable under subsection(c). The word "removable" in subsection (c) can only be givencontent by reference to the other provisions in § 1441. SeeSouthland Corp. v. Estridge, 456 F. Supp. 245, 248 (C.D.Cal.1971); Greater New York Mut. Ins. Co. v. Anchor ConstructionCo., 326 F. Supp. 245, 248 (E.D.Pa. 1971); 14 C. Wright, supranote 7, § 3724 at 647-48.
15. See, e.g., Loew's of Montgomery, Inc. v. Smith,432 F. Supp. 1008, 1010 (M.D.Ala. 1977); White v. Baltic ConveyorCo., 209 F. Supp. 716, 719 (D.N.J. 1962).
16. See also Southland Corp. v. Estridge, 456 F. Supp. 1296,1298-99 (C.D.Cal. 1978) (explaining West).
17. See, e.g., Central of Georgia Ry. Co. v. Riegel TextileCorp., 426 F.2d 935, 938 (5th Cir. 1970); Peturis v. Fendley,496 F. Supp. 203, 204 (S.D.Ala. 1980); Gamble v. Central ofGeorgia Ry. Co., 356 F. Supp. 324, 328 (M.D.Ala.), rev'd onother grounds, 486 F.2d 781 (5th Cir. 1973); Coleman v. A & DMachinery Co., 298 F. Supp. 234, 236 (E.D.Cal. 1969).
18. It is for this reason that some courts have justifiedremoval jurisdiction over third party actions, arguing that auniform statute such as § 1441 should not give rise todifferent results depending on whether a given state permitsthe filing of third party complaints instead of forcing thefiling of a separate, removable action. See Carl HeckEngineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133,135-36 (5th Cir. 1980); Wayrynen Funeral Home, Inc. v. J.G.Link & Co., 279 F. Supp. 803 (D.Mont. 1968); IndustrialLithographic Co. v. Mendelsohn, 119 F. Supp. 284, 286 (D.N.J.1954). The weight of this argument is unclear, however, sincethe rule of West and Shamrock Oil makes removability turn onlocal counterclaim practice. See Central of Georgia Ry. Co. v.Riegel Textile Corp., 426 F.2d 935, 938 (5th Cir. 1970).
19. In this case, only FMC had a choice of forum since thefranchisors could not remove the case under 28 U.S.C. § 1441(b)(1976).
20. See Luebbe v. Presbyterian Hosp., 526 F. Supp. 1162, 1164(S.D.N.Y. 1981); Chase v. North American Systems, Inc.,523 F. Supp. 378, 382 (W.D.Pa. 1981); Parks v. Physicians & SurgeonsBuilding Corp., 324 F. Supp. 883 (W.D.Okla. 1971); Holloway v.Gamble-Skogmo, Inc., 274 F. Supp. 321, 323-24 (N.D.Ill. 1967).
21. See Luebbe v. Presbyterian Hosp., 526 F. Supp. 1162, 1164(S.D.N.Y. 1981); 1A J. Moore, supra note 7, ¶ 0.167.
22. See Motor Vehicle Cas. Co. v. Russian River C'ntySanitation Dist., 538 F. Supp. 488, 492-93 (N.D.Cal. 1981); Bondv. Doig, 433 F. Supp. 243, 247 (D.N.J. 1977).
23. See Guaranty Trust Co. v. York, 326 U.S. 99, 111 12, 65S.Ct. 1464, 1470-1471, 89 L.Ed. 2079 (1945); Burford v. Sun OilCo., 319 U.S. 315, 336-37, 63 S.Ct. 1098, 1108-1109, 87 L.Ed.1424 (1943) (Frankfurter, J., dissenting); Erie R. Co. v.Tompkins, 304 U.S. 64, 74, 58 S.Ct. 817, 820, 82 L.Ed. 1188(1938); Pease v. Peck, 59 U.S. (18 How.) 595, 599, 15 L.Ed. 518(1856); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304,347, 4 L.Ed. 7 (1816); Bank of United States v. Deveaux, 9 U.S.(5 Cranch) 61, 87, 3 L.Ed. 38 (1809); Smith v. MetropolitanProp. & Liab. Ins. Co., 629 F.2d 757, 761 n. 7 (2d Cir. 1980);Betar v. De Havilland Aircraft of Canada, Ltd., 603 F.2d 30, 35(7th Cir. 1979), cert. denied, 444 U.S. 1098, 100 S.Ct. 1064,62 L.Ed. 785 (1980); In re Commonwealth Oil Refining Co.,596 F.2d 1239, 1247 n. 17 (5th Cir. 1979), cert. denied,444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980); Baltimore Bank forCooperatives v. Farmers Cheese Co-op., 583 F.2d 104, 112 (3dCir. 1978); Aerojet-General Corp. v. Askew, 511 F.2d 710, 716n. 6 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct.210, 46 L.Ed.2d 137 (1975); Ziadv v. Curley, 396 F.2d 873, 875(4th Cir. 1968); Caso v. Lafayette Radio Elec. Corp.,370 F.2d 707, 710 (1st Cir. 1966); Szantay v. Beech Aircraft Corp.,349 F.2d 60, 65 (4th Cir. 1965).
24. See Central of Georgia Ry. Co. v. Riegel Textile Corp.,426 F.2d 935, 938 (5th Cir. 1970). See also Comment, DiversityRemoval Where the Federal Court Would Not Have OriginalJurisdiction: A Suggested Reform, 114 U.Pa.L.Rev. 709 (1966).
25. See cases cited, note 8, supra. But cf. Marsh InvestmentCorp. v. Langford, 494 F. Supp. 344, 350-51 (E.D.La. 1980) (noremand where propriety of removal was not raised until aftertrial and plaintiff did not seek remand to protect its choiceof forum), aff'd, 652 F.2d 583 (5th Cir. 1981) (per curiam),cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319(1982). Remand is also advisable since there is a question asto the constitutionality of hearing a non-federal claim that isseparate and independent — and hence not part of the same"case or controversy" — as the federal claim over which thereis jurisdiction. See Lewin, The Federal Courts' Hospitable BackDoor — Removal of "Separate and Independent" Non-FederalCauses of Action, 66 Harv.L.Rev. 423 (1953). But see TwentiethCentury-Fox Film Corp. v. Taylor, 239 F. Supp. 913, 918-21(S.D.N.Y. 1965); Cohen, Problems in the Removal of a "Separateand Independent" Claim or Cause of Action, 46 Minn.L.Rev. 1(1961).
26. See Peturis v. Fendley, 496 F. Supp. 203, 205 (S.D.Ala.1980); Coleman v. A & D Machinery Co., 298 F. Supp. 234, 236-37(E.D.Cal. 1969).
27. Thus, we disagree with courts that claim thatpermitting removal in this type of case will creatediseconomies, see Greater New York Mut. Ins. Co. v. AnchorConstruction Co., 326 F. Supp. 245, 249 (E.D.Pa. 1971); White v.Baltic Conveyor Co., 209 F. Supp. 716, 721-22 (D.N.J. 1962).Professors Wright and Miller acknowledge the force of ouranalysis — that removal followed by remand protects therelevant interests — but argue that this creates an additionalprocedural step which vitiates judicial economy. See 14 C.Wright, supra note 7, § 3724 at 646. However, a simple rulethat all third party defendants can remove but that, absentextraordinary circumstances, the original action will beremanded would be simple to administer. Parties would rarelylitigate the question of remand. Judicial economyconsiderations are truly significant only when it comes toapportioning precious trial time, and the procedure we adoptshould create no diseconomy on that front.
28. It does appear that when § 1441 was last revised, it wasthought that the fear of local prejudice — which is admittedlysignificant to our conclusion that Ford's right to removeshould be protected — was less significant than in the past.In particular, the revision deleted the provision permittingremoval where local prejudice could be demonstrated for thisreason. See Greater New York Mut. Ins. Co. v. AnchorConstruction Co., 326 F. Supp. 245, 248 (E.D.Pa. 1971);28 U.S.C. § 1441 Revisors' Note (1976). However, the revision didnot delete the distinction drawn by § 1441(b): onlyout-of-staters may remove diversity cases. The only rationalefor this distinction is the local prejudice argument thatin-staters need not fear their own courts, but out-of-statershave reason to seek a federal forum. Thus, for purposes of §1441(b), it remains the case that Congress is still concernedwith protecting out-of-staters from having to litigate in thecourts of foreign states.
29. See Great Northern R. Co. v. Alexander, 246 U.S. 276,281-82, 38 S.Ct. 237, 239-240, 62 L.Ed. 713 (1918); AmericanCar & Foundry Co. v. Kettlehake, 236 U.S. 311, 314 16, 35 S.Ct.355, 355-356, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co.v. Interior Construction & Improvement Co., 215 U.S. 246,249-51, 30 S.Ct. 76, 77-78, 54 L.Ed. 177 (1909); Kansas CitySub. Belt Ry. v. Herman, 187 U.S. 63, 69 70, 23 S.Ct. 24,26-27, 47 L.Ed. 76 (1902); Whitcomb v. Smithson, 175 U.S. 635,20 S.Ct. 248, 44 L.Ed. 303 (1900).
30. See Debry v. Transamerica Corp., 601 F.2d 480, 486-88(10th Cir. 1979); Self v. General Motors Corp., 588 F.2d 655,657 58 & n. 4 (9th Cir. 1978); Weems v. Louis Dreyfus Corp.,380 F.2d 545, 547-48 (5th Cir. 1967); Hopkins Erecting Co. v.Briarwood Apartments, 517 F. Supp. 243, 249-50 (E.D.Ky. 1981);Saylor v. General Motors Corp., 416 F. Supp. 1173, 1174-75(E.D.Ky. 1975); Ennis v. Queen Ins. Co., 364 F. Supp. 964(W.D.Tenn. 1973); Hum v. Missouri Pac. R. Co., 292 F. Supp. 65,66 (E.D.Ark. 1968); Squibb-Mathieson Int'l Corp. v. St. PaulMercury Ins. Co., 238 F. Supp. 598 (S.D.N.Y. 1965); Potter v.Carvel Stores of New York, Inc., 203 F. Supp. 462, 467 (D.Md.1962), aff'd, 314 F.2d 45 (4th Cir. 1963) (per curiam); Stonev. Foster, 163 F. Supp. 298 (W.D.Ark. 1958). But see Comment,The Effect of Section 1446(b) on the Nonresident's Right toRemove, 115 U.Pa.L.Rev. 264 (1966).
31. See Hopkins Erecting Co. v. Briarwood Apartments,517 F. Supp. 243, 249-50 (E.D.Ky. 1981); White v. Hughes,409 F. Supp. 1005, 1008 (W.D.Tenn. 1975).
32. FMC was not required to join in the removal petition.It is well-settled that when removal is based on the existenceof a separate and independent claim under § 1441(c), only thedefendant in that separate and independent claim need join inthe removal petition under § 1446. See C. Wright, supra note 7,§ 3731 n. 9 (1976 & Supp. 1983). This rule is entirelyconsistent with our holding that only the parties to theseparate and independent claim under § 1441(c) are relevant todetermining removability under § 1441(a) and (b) and 1446(b).
Since no claim is made that Ford is liable to thefranchisees for part of FMC's claim against them, we doubtthat the third party action was properly maintained underIll.Rev.Stat. ch. 110, ¶ 2-406(b) (1981). However, as long asthe state court had subject matter jurisdiction over theaction, removal is proper. See Freeman v. Bee Machine Co.,319 U.S. 448, 451-52, 63 S.Ct. 1146, 1148-1149, 87 L.Ed. 1509(1943); 1A J. Moore, supra note 7, ¶ 0.157. Under Illinoislaw, misjoinder of a party does not deprive a court of subjectmatter jurisdiction. See Horwath v. Parker, 72 Ill. App.3d 128,28 Ill.Dec. 90, 390 N.E.2d 72 (1979); People ex rel. Jonesv. Leviton, 327 Ill. App. 309, 64 N.E.2d 195 (1945); Hitchcockv. Reynolds, 278 Ill. App. 559 (1935); Ill.Rev.Stat. ch.110, ¶ 2-407 (1981).