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BAYLOR v. DISTRICT OF COLUMBIA

November 29, 1993

THERESA C. BAYLOR, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant/Third Party Plaintiff, v. COUNTY OF LASALLE, TEXAS, Third Party Defendant.


GREEN


The opinion of the court was delivered by: JOYCE HENS GREEN

This matter is before the Court on the petition of third party defendant, County of LaSalle, Texas ("LaSalle"), for removal from the Superior Court of the District of Columbia ("Superior Court"), pursuant to 28 U.S.C. § 1441(c). LaSalle has also filed a motion under 28 U.S.C. § 1404(a) to transfer venue to the Southern District of Texas. Plaintiffs and defendant/third party plaintiff, District of Columbia ("District"), filed oppositions to the petition for removal. Although neither party raised the issue of subject matter jurisdiction in its opposition to the petition for removal, the Court must sua sponte examine the issue of subject matter jurisdiction. For the reasons expressed below, the Court concludes that it does not have subject matter jurisdiction over this action and remands this case to the Superior Court.

 I. Background

 Plaintiffs are the personal representative and beneficiaries of the estate of Larry Alphonso Daniels, Jr. ("Daniels"), and Sean Thomas. At all times relevant to this case, Daniels and Thomas were inmates in the custody and care of the District. Pursuant to an agreement between LaSalle and the District, Daniels and Thomas were incarcerated in the LaSalle County Jail in Cotulla, Texas.

 On or about November 6, 1991, Daniels and Thomas were each a victim of a stabbing and assault and battery allegedly committed by fellow inmates armed with knives. Daniels was killed in the incident and Thomas suffered severe personal injuries.

 Plaintiffs initiated a lawsuit against the District on July 1, 1992. The five count complaint alleges negligence, survival, and wrongful death and seeks monetary damages. *fn1" The District answered the complaint on October 2, 1992, and, on May 6, 1993, filed a motion to join LaSalle as a third party defendant. This motion was granted on August 20, 1993, at which time the District filed a third party complaint. LaSalle answered the third party complaint and filed the instant petition for removal.

 II. Discussion

 In support of its petition for removal, LaSalle relies upon 28 U.S.C. § 1441(c), which, according to LaSalle, 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.

 LaSalle's reliance on section 1441(c) as the basis for removal is entirely inappropriate. Apparently unbeknownst to LaSalle, section 1441(c) was amended as part of the Judicial Improvements Act of 1990. Section 1441(c) actually provides:

 
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title 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 in which State law predominates.

 28 U.S.C.A. § 1441(c) (West Supp. 1993) (emphasis added). The revised section 1441(c) went into effect on December 1, 1990, several years prior to the commencement of this action. See 28 U.S.C.A. § 1441, Commentary on 1990 Revision (West Supp. 1993). *fn2"

 The language of section 1441(c) expressly mandates that the "separate and independent claim or cause of action" must be "within the jurisdiction conferred by section 1331"--the federal question statute. This section does not authorize removal in cases that rely on diversity of citizenship (section 1332)--precisely the issue in the ...


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