under § 1441(c)." 341 U.S. at 14 (footnote omitted).
A review of plaintiff's complaint, which controls [Uid.O], establishes that the claims against Royal Globe and Jugolinija are not separate and independent from the claim against INA and, therefore, the entire case is not removable under § 1441(c). Although it has stated five separate counts, plaintiff essentially seeks recovery for a single injury, the loss of its eels. It names different defendants because, at this point, it is simply unable to ascertain how the damage occurred. Plaintiff's claims against INA and Jugolinija (counts III, IV and V) allege that the injury to the eels was caused either by Jugolinija, or INA (through Burgmeyer), or both. The fact that INA's liability is predicated on the truck transport of the eels by land and Jugolinija's on the the ship transport, does not make these separate and independent claims since they are clearly related factually and stem from the same transaction - the shipment of the eels. Indeed, the relationship between the claims against INA and Jugolinija is illustrated by the fact that in count V of the complaint plaintiff alleges that these parties are jointly and severally liable for its injury, an allegation which dictates a finding that the claims are not separate and independent. See American Fire & Casualty Company v. Finn, supra, 341 U.S. at 13-14 & n.13. See generally 14 Wright & Miller, Federal Practice and Procedure, § 372 at 629 (1976 & Supp.).
The only claims that are arguable separate and independent from the claim against INA are those against Royal Globe. Plaintiff states two counts against Royal Globe, one, a claim in "Assumpsit" seeking payment under the insurance contract, and another in "Trespass", sounding in tort, seeking damages to its business occasioned by Royal Globe's alleged failure to pay under the contract. Despite the fact that Royal Globe's liability to plaintiff is based on a contract, I am not persuaded that it is separate and independent from the claims against Jugolinija and INA. No matter how one views the claims against Royal Globe, both claims seek to recover for the loss of the eels, the same injury for which plaintiff seeks to recover from INA and Jugolinija.
In count I, plaintiff seeks to be paid for the loss of the eels under the policy, again the same injury claimed against INA and Jugolinija on counts III and IV. The claim in count II, for wrongful refusal to pay under the policy, seeks the same damages for loss of profits and loss of business that is sought against Jugolinija and INA in count V. When all of the counts of the complaint are viewed together, therefore, it is apparent that plaintiff is alleging that these defendants are alternatively liable for the single injury it suffered when the shipment was damaged. Under Finn these claims are not separate and independent.
The cases cited by Jugolinija are not to the contrary. None of them involve the situation in the instant case where plaintiff seeks recovery for a single injury. See, e.g., Climax Chemical Company v. C.F. Braun & Co., 370 F.2d 616 (10th Cir. 1966), cert. denied, 386 U.S. 981, 87 S. Ct. 1287, 18 L. Ed. 2d 231 (1967) (where plaintiff brought claims against contractors of components of a single unit for failure of each component to perform, the claims were separate and independent as injury to each component was a distinct loss); Crosby v. Paul Hardeman, Inc., 414 F.2d 1 (8th Cir. 1969) (plaintiff's claim against diverse plaintiffs were for a loss occasioned prior to the loss caused by non-diverse defendants); Greenshields v. Warren Petroleum Company, 248 F.2d 61 (10th Cir. 1957), cert. denied, 355 U.S. 907, 78 S. Ct. 334, 2 L. Ed. 2d 262 (1957) (complaint against non-diverse party involved conduct which caused a "different result" than the claim against diverse parties).
Accordingly, in the instant case, where plaintiff is suing for a single injury arising out of a series of interlocked transactions, removal is improper under § 1441(c). Because removal is similarly improper under § 1441(b), the entire case will be remanded. 28 U.S.C. § 1447.
Alfred J. Luongo
This 9th day of September, 1981, it is ORDERED that the above captioned civil action is REMANDED to the Philadelphia Court of Common Pleas, 28 U.S.C. § 1447(c).
Alfred J. Luongo