F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 30 1999 TENTH CIRCUIT PATRICK FISHER Clerk LORENE GOODMAN,
Plaintiff - Appellant, vs. No. 98-6437 (D.C. No. 95-CV-1619) MEDICAL ENGINEERING (W.D. Okla.) CORPORATION; BRISTOL-MYERS SQUIBB COMPANY; AESTHETECH CORPORATION; THE COOPER COMPANIES, INC.; COOPERVISION INC.; CV SUB 1987 INC.; INAMED CORPORATION; SIROD CORPORATION; CVI MERGER CORPORATION; MINNESOTA MINING AND MANUFACTURING CORPORATION, d/b/a 3M Company; J. DAN METCALF,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, Circuit Judges, and BROWN, ** District Judge. ***
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** Hon. Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation.
After examining the briefs and the appellate record, this three-judge ***
panel has determined unanimously that oral argument would not be of material Plaintiff-appellant Lorene Goodman appeals from the dismissal with
prejudice of her suit against the above-named defendants. The district court
dismissed plaintiff’s suit for failure to comply with the court’s orders. Because
we conclude that the district court lacked subject matter jurisdiction over this
action, we direct the district court to vacate its judgment and remand to the
Oklahoma state district court.
In August 1992, plaintiff, a Texas citizen, filed a breast implant suit in
Oklahoma state district court alleging medical malpractice and products liability
against various defendants and Dow Corning Corporation (DCC). Defendants did
not attempt to exercise any right of removal under 28 U.S.C. § 1441. Three years
later, on May 15, 1995, DCC filed for bankruptcy in the United States Bankruptcy
Court for the Eastern District of Michigan. In October 1995, DCC unilaterally
removed Ms. Goodman’s claims against it to the federal district court for the
Western District of Oklahoma, with the objective of having those claims
transferred to the Michigan bankruptcy court. See 28 U.S.C. §§ 1334(b); Fed. R.
Bankr. Proc. 9027; Appellee Metcalf’s App. at 17-21. Metcalf, the
defendant/physician who had performed plaintiff’s implants, timely asked for
clarification in regard to the removal of defendants other than DCC, and if the
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
-2- whole case had been removed, objected to the removal and sought remand of the
claims not involving DCC. See R. tab 2, Metcalf’s motion for clarifying order or,
alternatively, for remand and abstention. DCC responded that it only intended to
remove “those personal injury/breast implant claims asserted against it” and it
“did not, and it was not its intention, to remove any claims pertaining to the
Physician Defendants.” See Appellee Metcalf’s App. at 25.
In February 1996, before the Oklahoma federal district court ruled on
Metcalf’s motion for clarification or remand, the case was transferred into federal
multi-district litigation (MDL) proceedings in Alabama, along with 127 other
cases from eight other states. See id. at 28-30. The MDL Panel summarily
rejected arguments that some cases had been improperly removed to federal court
or that the motions to remand should be decided prior to transfer to Alabama. See
id. at 28. Both plaintiff and defendant Metcalf again unsuccessfully sought an
order of clarification and remand in the Alabama proceedings, asserting that
plaintiff’s claims against the remaining defendants had never been removed to
federal court. See id. at 36-44 (Oklahoma plaintiffs’ joint motion to sever and
remand); id. at 31-35 (Metcalf’s motion for clarification order regarding removed
claims); id. at 73-74 (letter to Northern District of Alabama requesting decision
on motions for remand). None of the remaining defendants opposed the motions
for remand.
-3- The question before us is whether, after DCC removed the claims against it
to the Oklahoma federal district court, the cause of action against the remaining
defendants stayed in state court or was also removed to the Oklahoma federal
district court automatically or by some other means. In their joint answer brief,
the manufacturing appellees candidly state that DCC’s removal “did not result in
the removal of Plaintiff’s claims against any of the remaining Defendants”
because the remaining defendants failed to file a notice of removal in this case.
See Joint Br. of Manufacturing Appellees at 2. Metcalf contends that removal of
plaintiff’s claims against the remaining defendants never occurred, a position
shared by the plaintiff, although she now seeks transfer of the case to the United
States District Court for the Northern District of Texas.
Federal removal jurisdiction is statutory in nature and is to be strictly
construed. See Shamrock Oil & Gas v. Sheets , 313 U.S. 100, 108-09 (1941).
“There is a presumption against removal jurisdiction,” and doubtful cases must
be resolved in favor of remand. Laughlin v. Kmart Corp ., 50 F.3d 871, 873
(10th Cir. 1995); see also American Fire & Cas. Co. v. Finn , 341 U.S. 6, 17-18
(1951) (stating that “[t]he [removal] jurisdiction of the federal courts is carefully
guarded against expansion by judicial interpretation or by prior action or consent
of the parties”).
DCC is not a party to this appeal, the Eastern District of Michigan having
-4- taken bankruptcy jurisdiction over the claims against DCC. In our search for
federal jurisdiction, the manufacturing appellees state that “[a]rguably, the entire
case fell within the [Oklahoma] federal district court’s original (but not
exclusive) jurisdiction as a result of [DCC’s] bankruptcy filing.” Joint Br. of
Manufacturing Def. at 2 (citing 28 U.S.C. § 1334(b)). Even if plaintiff’s claims
against DCC were properly removed to the Oklahoma district court under 28
U.S.C. § 1452(a) and Fed. R. Bankr. Proc. 9027, see Maritime Elec. Co., Inc. v.
United Jersey Bank , 959 F.2d 1194, 1211-12 & 1212 n.6 (3rd Cir. 1992); National
Developers, Inc. v. Ciba-Geigy Corp. (In re Nat’l Developers, Inc.) , 803 F.2d
616, 620 (11th Cir. 1986), the notice of removal expressly removed only the
claims against DCC; the other defendants did not join in removal. Thus, this case
is distinguishable from Lindsey v. O’Brien , Tanski, Tanzer & Young Health Care
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 30 1999 TENTH CIRCUIT PATRICK FISHER Clerk LORENE GOODMAN,
Plaintiff - Appellant, vs. No. 98-6437 (D.C. No. 95-CV-1619) MEDICAL ENGINEERING (W.D. Okla.) CORPORATION; BRISTOL-MYERS SQUIBB COMPANY; AESTHETECH CORPORATION; THE COOPER COMPANIES, INC.; COOPERVISION INC.; CV SUB 1987 INC.; INAMED CORPORATION; SIROD CORPORATION; CVI MERGER CORPORATION; MINNESOTA MINING AND MANUFACTURING CORPORATION, d/b/a 3M Company; J. DAN METCALF,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, Circuit Judges, and BROWN, ** District Judge. ***
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** Hon. Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation.
After examining the briefs and the appellate record, this three-judge ***
panel has determined unanimously that oral argument would not be of material Plaintiff-appellant Lorene Goodman appeals from the dismissal with
prejudice of her suit against the above-named defendants. The district court
dismissed plaintiff’s suit for failure to comply with the court’s orders. Because
we conclude that the district court lacked subject matter jurisdiction over this
action, we direct the district court to vacate its judgment and remand to the
Oklahoma state district court.
In August 1992, plaintiff, a Texas citizen, filed a breast implant suit in
Oklahoma state district court alleging medical malpractice and products liability
against various defendants and Dow Corning Corporation (DCC). Defendants did
not attempt to exercise any right of removal under 28 U.S.C. § 1441. Three years
later, on May 15, 1995, DCC filed for bankruptcy in the United States Bankruptcy
Court for the Eastern District of Michigan. In October 1995, DCC unilaterally
removed Ms. Goodman’s claims against it to the federal district court for the
Western District of Oklahoma, with the objective of having those claims
transferred to the Michigan bankruptcy court. See 28 U.S.C. §§ 1334(b); Fed. R.
Bankr. Proc. 9027; Appellee Metcalf’s App. at 17-21. Metcalf, the
defendant/physician who had performed plaintiff’s implants, timely asked for
clarification in regard to the removal of defendants other than DCC, and if the
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
-2- whole case had been removed, objected to the removal and sought remand of the
claims not involving DCC. See R. tab 2, Metcalf’s motion for clarifying order or,
alternatively, for remand and abstention. DCC responded that it only intended to
remove “those personal injury/breast implant claims asserted against it” and it
“did not, and it was not its intention, to remove any claims pertaining to the
Physician Defendants.” See Appellee Metcalf’s App. at 25.
In February 1996, before the Oklahoma federal district court ruled on
Metcalf’s motion for clarification or remand, the case was transferred into federal
multi-district litigation (MDL) proceedings in Alabama, along with 127 other
cases from eight other states. See id. at 28-30. The MDL Panel summarily
rejected arguments that some cases had been improperly removed to federal court
or that the motions to remand should be decided prior to transfer to Alabama. See
id. at 28. Both plaintiff and defendant Metcalf again unsuccessfully sought an
order of clarification and remand in the Alabama proceedings, asserting that
plaintiff’s claims against the remaining defendants had never been removed to
federal court. See id. at 36-44 (Oklahoma plaintiffs’ joint motion to sever and
remand); id. at 31-35 (Metcalf’s motion for clarification order regarding removed
claims); id. at 73-74 (letter to Northern District of Alabama requesting decision
on motions for remand). None of the remaining defendants opposed the motions
for remand.
-3- The question before us is whether, after DCC removed the claims against it
to the Oklahoma federal district court, the cause of action against the remaining
defendants stayed in state court or was also removed to the Oklahoma federal
district court automatically or by some other means. In their joint answer brief,
the manufacturing appellees candidly state that DCC’s removal “did not result in
the removal of Plaintiff’s claims against any of the remaining Defendants”
because the remaining defendants failed to file a notice of removal in this case.
See Joint Br. of Manufacturing Appellees at 2. Metcalf contends that removal of
plaintiff’s claims against the remaining defendants never occurred, a position
shared by the plaintiff, although she now seeks transfer of the case to the United
States District Court for the Northern District of Texas.
Federal removal jurisdiction is statutory in nature and is to be strictly
construed. See Shamrock Oil & Gas v. Sheets , 313 U.S. 100, 108-09 (1941).
“There is a presumption against removal jurisdiction,” and doubtful cases must
be resolved in favor of remand. Laughlin v. Kmart Corp ., 50 F.3d 871, 873
(10th Cir. 1995); see also American Fire & Cas. Co. v. Finn , 341 U.S. 6, 17-18
(1951) (stating that “[t]he [removal] jurisdiction of the federal courts is carefully
guarded against expansion by judicial interpretation or by prior action or consent
of the parties”).
DCC is not a party to this appeal, the Eastern District of Michigan having
-4- taken bankruptcy jurisdiction over the claims against DCC. In our search for
federal jurisdiction, the manufacturing appellees state that “[a]rguably, the entire
case fell within the [Oklahoma] federal district court’s original (but not
exclusive) jurisdiction as a result of [DCC’s] bankruptcy filing.” Joint Br. of
Manufacturing Def. at 2 (citing 28 U.S.C. § 1334(b)). Even if plaintiff’s claims
against DCC were properly removed to the Oklahoma district court under 28
U.S.C. § 1452(a) and Fed. R. Bankr. Proc. 9027, see Maritime Elec. Co., Inc. v.
United Jersey Bank , 959 F.2d 1194, 1211-12 & 1212 n.6 (3rd Cir. 1992); National
Developers, Inc. v. Ciba-Geigy Corp. (In re Nat’l Developers, Inc.) , 803 F.2d
616, 620 (11th Cir. 1986), the notice of removal expressly removed only the
claims against DCC; the other defendants did not join in removal. Thus, this case
is distinguishable from Lindsey v. O’Brien , Tanski, Tanzer & Young Health Care
Providers (In re Dow Corning Corp.) , 86 F.3d 482, 486, 494 (6th Cir. 1996),
where the Sixth Circuit held that Eastern District of Michigan had “related-to”
jurisdiction under 28 U.S.C. § 1334(b) of claims against removing non-DCC
defendants.
Although removal in the bankruptcy context is theoretically possible under
28 U.S.C. § 1441(a), see Things Remembered, Inc. v. Petrarca , 516 U.S. 124,
128-29 (1995), that cannot be the basis for removal jurisdiction in this case.
First, no timely notice of removal was filed. See 28 U.S.C. § 1446(b). Second,
-5- only DCC sought to remove; the removal petition was not joined by all
defendants, another prerequisite. See Cornwall v. Robinson , 654 F.2d 685, 686
(10th Cir. 1991).
We conclude that because (1) only those claims against DCC were
expressly removed to the Oklahoma federal district court in DCC’s notice of
removal; (2) the remaining defendants did not join in the removal; and (3) the
Oklahoma federal district court does not have jurisdiction over the remaining
claims under any other statute brought to our attention, the Oklahoma federal
district court had no subject matter jurisdiction to issue its order dismissing
plaintiff’s claims against the remaining defendants and its judgment is void. See
United States v. 51 Pieces of Real Property , 17 F.3d 1306, 1309 (10th Cir. 1994)
(stating that “a judgment is void if the court that enters it lacks jurisdiction over
either the subject matter of the action or the parties to the action”). In these
circumstances, the case against the remaining defendants should be remanded to
state court. See 28 U.S.C. §§ 1447(c); Owens-Illinois, Inc. v. Rapid American
Corp. (In re Celotex Corp.) , 124 F.3d 619, 625 (4th Cir. 1997) (proper bankruptcy
removal requires subject matter jurisdiction).
Defendant INAMED’s motion to adopt the manufacturing appellees’ brief
is GRANTED .
The manufacturing appellees’ motion for an order striking appellant’s brief
-6- and requiring appellant to disclose the identity of all counsel who provided legal
assistance in drafting her brief is DENIED .
The case is REMANDED to the United States District Court for the
Western District of Oklahoma with instructions to vacate its judgment and to
remand the case to the Oklahoma County state district court from whence it was
allegedly removed for further proceedings.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge
-7-