The opinion of the court was delivered by: WEBER
This diversity case presents a number of interesting questions regarding the scope of federal removal jurisdiction under 28 U.S.C. § 1441(c). In this case the resolution of these questions is complicated by several unique features of Pennsylvania state practice that have no counterpart in the federal system.
It is conceded that this action alone could have been removed by the defendant to federal court. See 28 U.S.C. § 1441 et seq. North American Systems, however, elected to proceed with this action in state court.
As part of its defense to this action in state court, North American filed a pleading styled "Complaint to Join Additional Defendant". In this third-party complaint North American named Rival Manufacturing Company, a Missouri corporation, as an additional defendant. The complaint asserted that a can opener manufactured by Rival was the cause of the fire which destroyed plaintiffs' home, and prayed that Rival be found solely liable for the plaintiffs' damages.
In effect, then, the third-party complaint submitted by North American "tendered" a different defendant to the plaintiffs. Under Pennsylvania practice this type of third-party complaint is permitted. See Pennsylvania R. of Civ. P. 2252(a) ("in any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person ... who may alone be liable ... on the cause of action declared upon by the plaintiff..."). No such third-party joinder can be effected, however, under the Federal Rules of Civil Procedure. Rule 14(a) of the Fed.R. of Civ.P. only permits a defendant to join as a third-party defendant a person "who is or may be liable to (the defendant) for all or part of the plaintiffs' claim against (defendant)." This rule has uniformly been construed to prohibit the joinder of a third-party defendant solely on the basis of that third-party's direct liability to the plaintiff. See, e.g. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 368, note 3, 98 S. Ct. 2396, 2399-400, note 3, 57 L. Ed. 2d 274 (1978); Millard v. Municipal Sewer Authority of Lower Makefield Township, 442 F.2d 539, 541 (3d Cir. 1971). Therefore, the "tender" of another defendant to the plaintiff accomplished by North American in this case would have been impossible had plaintiffs sued in federal court or had North American elected to remove this action to federal court.
On August 5, 1981, Rival Manufacturing Company petitioned for the removal of this action to the United States District Court for the Western District of Pennsylvania, asserting that there was complete diversity between all of the parties in this case and that the amount in controversy exceeded $ 10,000. North American responded to this petition by filing a motion to remand this action back to the Court of Common Pleas of Warren County.
The instant motion to remand presents two distinct legal issues. First, is a third-party defendant a proper removing party under 28 U.S.C. § 1441(c)? Second, does the third-party complaint in this case state a "separate and independent" cause of action removable to federal court under 28 U.S.C. § 1441(c)?
As the party seeking to assert federal jurisdiction in this case Rival Manufacturing bears the burden of proof on both of these issues. See, R. G. Barry Corporation v. Mushroom Makers, Inc., 612 F.2d 651, (2d Cir. 1979); Unanue v. Caribbean Canneries, Inc., 323 F. Supp. 63 (D.C.Del.1971). In this case we feel that Rival has not met its burden of proof on either of these questions. Therefore, we will grant North American Systems' Motion to Remand.
The right of a party to remove a case from state to federal court is a purely statutory right and, as such, is dependent upon the will of Congress for its continued existence. See, e.g. Libhart v. Santa Monica Dairy Company, 592 F.2d 1062 (9th Cir. 1979); Greater New York Mutual Insurance Co. v. Anchor Construction Co., 326 F. Supp. 245, 247 (E.D.Pa.1971). Therefore, removal jurisdiction exists in a given case only when that jurisdiction is expressly conferred on the courts by Congress. Moreover in determining the scope of this statutory removal jurisdiction it has been the policy of the courts to construe these jurisdictional grants strictly and to decline jurisdiction in doubtful cases. See, e.g. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1949); Folts v. City of Richmond, 480 F. Supp. 621, (D.C.Va.1979); Greater New York Mutual Insurance Co., supra; Fiblenski v. Hirschback Motor Lines, Inc., 304 F. Supp. 283 (E.D.Ark.1969); Holloway v. Gamble-Skogmo, Inc., 274 F. Supp. 321 (N.D.Ill.1967).
In this case the removing party, Rival Manufacturing Company, asserts that federal jurisdiction exists by virtue of 28 U.S.C. § 1441(c). That section, in pertinent part, states as follows:
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.
According to Rival the third-party complaint filed against it by the defendant, North American Systems, presents a "separate and independent claim ... which would be removable if sued upon alone." Therefore, removal of this action is appropriate.
There is, however, a threshold problem with this position. North American Systems contends that Rival, as a third-party defendant, is not a proper ...